by Burl Barer
Sawyer was adamant about having the whole conversation in front of the jury, and kept hammering away at the issue with all his might. “Meanwhile,” said Fred Wolfson, “Rhonda was complaining to her lawyer that the jurors were not being told how much Swenson and she drank that night. ”
“Let me cut to the quick so that we all know,” said Sawyer. “Ms. Van Winkle elicited from Swenson the statement about cutting off Jimmy’s penis. I think I am entitled to the entire statement, not just part of it.”
“What is it?” asked Lynch.
“She thought Jimmy was a devil. She believed that he was a cannibal! Yes, a cannibal! And they were engaging in satanic worship!”
That’s what Sawyer wanted the jury to hear, that’s what he wanted the jury to know. “It is part of the same conversation,” he argued, “the same ongoing conversation.”
This was Sawyer’s way of getting the whole bizarre picture before the jury. Not only would the entire conversation give a sense of perspective to Rhonda’s scary plan, but would also certainly put the reality of Rhonda Glover’s paranoid delusions in front of the jury. He was forbidden from telling them directly about Glover’s strange beliefs. If it were to come out in the guilt/innocence phase of the trial, it had to come out in a manner such as the conversation with Patti Swenson.
The situation faced by Sawyer is one that many experts find troublesome. “When I was a psychiatric resident,” said Dr. Marc Feldman, clinical professor of psychiatry, and adjunct professor of psychology at the University of Alabama, “I was taught that mentally ill individuals had no greater propensity toward violence than normal people. But that is now known not to be true. It is still the case that the best predictor of violence is a past history of violence, but mental illness—especially when involving hallucinations or delusions—does serve as a potential warning sign. Therefore, it seems to me that in order to understand a case fully, a jury needs to have complete information about any history of serious mental illness, particularly if it has led to police detention, commitment, et cetera. It is vital,” insisted Feldman, “that the jury has this information during the guilt/innocence phase.”
In Feldman’s view, if the criminal behavior was driven by religious delusions, and if serious mental illness had been “a kind of background music in her life, [then] to exclude this information could result in an unfair verdict. ”
Judge Lynch understood what Sawyer was upset about, and turned to Case and Van Winkle. “How is he supposed to defend against what you elicited from the witness?” he asked, referring to Swenson telling of Rhonda wanting to cut off Jimmy’s penis. “How is he to defend and say that is not what she intended to do? You put it in to show intent.”
“Yes,” said Van Winkle, “she intended to kill him.”
“She said she was going to kill him,” added Case.
“She did kill him,” confirmed Van Winkle.
Judge Lynch agreed with Sawyer 100 percent as to his reasons, and his concerns. The problem, according to Lynch, was that because Swenson took Glover’s threat seriously, probing more into the conversations of the day was not going to advance Sawyer’s understandable agenda that it was all part of one big irrational blathering binge by a mental patient. For that reason, and despite the judge’s sympathy for Sawyer’s position, he ruled in favor of the prosecution.
Lynch’s ruling on the issue upset both Sawyer and his client. “I think the jury needed to know the whole story. The judge,” complained Rhonda Glover, “flat out refused the opportunity to tell the entire conversation we had that night. Patti is no friend. My jerk lawyer let her get up there and say lies about me. That whole thing about cutting off his penis was something she made up to get even with me. Patti had been drinking all day and night, and she closed the bar down. My lawyer could have picked up on that and said, ‘Okay, how is it that you can drink all day and night and still say you recall all of what you heard Rhonda say?’ That right there,” Glover insisted, “would have put that in the jury’s mind. They should have heard the whole story, and they should have known how drunk Swenson was, and all that. They could have made a note of that,” complained Glover, “but the jury was not allowed to take notes.”
“The state,” said Judge Mike Lynch, “is opposed to note taking because of the distraction, and because a number of instructions are required, and because we didn’t allow voir on it as required by the rules.”
Glover’s attorney, the prosecutors and the judge all had a little conversation off the record. End result: no notes. “One more example,” said Glover, “of how things were not fair. I am very perceptive. I notice things, and I’m certainly not crazy, dishonest or delusional. Jimmy was the one who was out of his mind on drugs.”
Other than the allegation in Sawyer’s opening remarks that Joste was a heavy drinker, drug user and abuser behind closed doors, negative remarks about Jimmy Joste were off-limits. It wasn’t Jimmy Joste who was on trial, and whether or not he consumed drugs, drank heavily or had child pornography on his computer was meaningless to the jurors whose job it was to determine whether or not Glover shot him in self-defense. Any attempts to portray Jimmy Joste as an evil man who “needed killing,” or impugn his reputation beyond any arrests or convictions for domestic violence committed against Glover or their son, were strictly verboten.
Friends and family of Joste and Glover knew full well that drugs had taken their toll on the couple well before Rhonda pulled the trigger. “I’ve known Rhonda for a long time,” said Marty Snitkin, “and can tell you that with her being bipolar, and mixing drugs, and Jimmy too, that she became totally delusional. Jimmy turned into toast.”
“The whole issue of past deeds and bad behavior was a continual battle throughout the entire trial,” recalled Wolfson. “Even though there was not supposed to be any mention of the drug stuff, or some of the rather disturbing yet unverified allegations Rhonda wanted brought up, these things kept creeping in. If there was even the slightest possibility that a witness was about to touch on a forbidden topic, the attorneys were on their feet, voicing objections.”
Another battleground was the interpretation of crime scene evidence. Where Rhonda was standing when she pulled the trigger was a matter of much contention. If she was pursuing Jimmy down the hall, or standing over his dead body when she shot him, the credibility of self-defense would suffer greatly. Taking the stand were the recognized experts on analysis of bloodstains and ballistics, including William Gibbons, who, at the time of the trial, was lab director with the Austin Police Department.
“I’ve been with the Austin Police Department for nine and a half years,” said Gibbons. “And I’ve been director of the crime lab for three years. The crime lab consists of seven disciplines. Firearms, toolmarks—we have a crime scene unit. We have forensic chemistry, which is narcotics analysis. We have DNA labs. We have a polygraph section and an evidence room. Personally, I am a bloodstain pattern analyst.”
One doesn’t become a bloodstain pattern expert in two weeks or two years. “I was nine years at the Nueces County Sheriff’s Office in Corpus Christi, Texas,” Gibbons said. “Then I went to the Corpus Christi Police Department, where I was a crime scene investigator and assistant supervisor for about six years, until 1996, which is when I took the job here as the manager of the Crime Scene and Latent Print Unit for the Austin Police Department. I have approximately thirty-two hundred hours of clock-hour training in crime scene investigation, and two hundred of those hours are in the area of bloodstain pattern analysis.”
Gibbons spent two years in a mentorship program with an experienced bloodstain analyst in order to become proficient in the discipline.
“What I would like you to do, Mr. Gibbons,” said Bryan Case to his witness, “is explain to the jury some of the key concepts of bloodstain analysis, along with a short explanation so they can understand why you make the determination of where the victim was shot, what direction they were going—and that sort of thing.”
“By using calculations,�
�� said Gibbons, “we can measure a bloodstain and determine at what degree that that bloodstain struck the surface, and then find a point of origin where that bloodstain originated from. We also look at the size of the stains. The size of the stains tells us the type of force that was involved when the bloodstain was produced. And a large stain,” explained Gibbons, “was usually the result of gravity and sustained blood loss in one place. There is also what we call medium-velocity impact spatter. It is smaller in size. In high-velocity stains we can determine from the shape of the stain what the point of origin was. ”
“If the bloodstains look random, it is because somebody is moving,” Gibbons testified. “If the spots are elongated with tails pointing a certain direction, those are high-impact stains. In other words, we had the few stains of the door of the bedroom, and then as you go through the hallway, you start to have more blood. Putting it in layman’s terms,” said Gibbons, “what we have is a victim moving to the hallway as he started to lose more blood, and so, you know, common sense tells us that [the big pool of blood] is where he came to rest. At some point, before he fell to the ground, he was standing, dripping blood, and then he fell over. I can tell you that because of the drip patterns of the bloodstains on the carpet. I can’t tell you how long—how many seconds or whatever—that he stood before he fell. If you look at the picture of the bloodstains, you can see that they start at the bedroom door, and then they get more random as he goes down the hall, and then more concentrated when he finally falls over. We can, from the movement made inside the scene, make an opinion what the occurrences are in that scene.”
Gibbons was asked to deliver some ballistics testimony, but Mr. Sawyer objected. “If we’re going to have ballistics testimony,” said Sawyer, “it has to come from someone with ballistics knowledge who is qualified to give answers, so I’m going to object to it.”
Bryan Case then showed Mr. Gibbons pictures of the bloodstains and asked him to explain them. According to Gibbons, Joste was first shot in the bedroom, near the entry door. The bloodstains indicated that Joste then moved from the bedroom into the hallway as the shooting continued. “Basically, the victim,” said Gibbons, “was in an upright position or near an upright position in or around the doorway. He started to work his way through the hallway. We see that from the increased blood concentration. At some point there was a bullet that went through him and into the wall while he was traveling down the hallway. Basically, he was shot in the hallway, and that is what caused the high-velocity impact stains. He starts to slow down, which is indicative of a gunshot injury. He actually stopped, staggered a little forward, stops for a few seconds, and then he goes to the ground.”
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Roberto Bayardo, M.D., the chief medical examiner for Travis County, testified regarding the autopsy performed by Dr. Peacock. “There were a total of thirteen gunshot wounds to Joste’s chest, abdomen, arm and groin areas. Of the thirteen wounds,” Dr. Bayardo said, “three were exit wounds. This indicates that Joste was shot ten times.
“Gunshot wound number one was in the chest,” Bayardo testified, “and this was through and through. The bullet exited out the back. There was a gunshot wound on the right side of the abdomen, and there was another one, that makes three. There was a gunshot wound to the right lower portion of the abdomen, just above the genitalia. This makes number four there. There were two gunshot wounds together by the left groin. There was also a gunshot wound on the right hip. Gunshot wound number eight was through the right hip, and wound number nine was through and through the left wrist, and there were three gunshot wounds over the right elbow with one of those being an exit wound. There was another gunshot wound of the right upper back that was the exit wound from the chest area. ”
Gail Van Winkle asked Bayardo if during the course of an autopsy, there was an attempt to determine trajectory, or the tracking of the bullets.
“Yes, we do that. ”
“Was Dr. Peacock able to do that in this case?” asked Van Winkle.
“No, because of the condition of the body, that was extremely difficult. The body had become decomposed. There was multiple damage to his internal organs, and that sometimes is a factor in determining trajectory.”
According to Dr. Bayardo, the specific internal damage to Jimmy Joste included both lungs, heart, liver, urinary bladder, intestines, spleen, aorta, ribs and his spine. “She recovered six bullets and three small fragments from the body,” testified Bayardo. “One was recovered from the right lung. Another was recovered from the diaphragm inside the chest, another was recovered from the back of the eighth left rib, another from the inside of the pelvis embedded in the bone, another from the spine, another from the right chest, and then there were three small fragments that she doesn’t make mention of exactly where she found them.”
“Is it possible to determine whether or not a wound is a close range, distance range or medium range?” asked Van Winkle.
“Most of the time, yes,” he replied.
Van Winkle was asking this question in an attempt to establish that the final six shots, and especially the shots to the groin, were delivered at close range, with Rhonda standing over Joste’s body.
“How we do that,” Bayardo explained, “is measure the distance based on the presence of gunpowder residue found around or inside the gunshot wound. There are three categories for this—contact, close range and undetermined distance. With the contact type, the entire residue is in the wound. The close-range wound has residue outside the wound and is characterized by powder, smoke or stippling by the gunpowder flecks. The distant or undetermined is the type when there is no gunpowder residue—that depends on the type of gun and ammunition, but usually farther than three feet you don’t expect to see any gunpowder residue around the wounds.”
In the specific case of Jimmy Joste, the body was so decomposed and discolored that it was impossible to make any determination on the distance from which the shots had been fired. There could be some conclusions made, however, on the position of the body relative to the position of the shooter, based on the angle of the wound and where the bullet was found.
Questioned regarding the wounds to Joste’s hip and groin, Bayardo testified that the wounds were consistent with Joste lying down or almost lying down, but basically horizontal. To say with absolute precision that Joste was lying on the ground while receiving the final six shots was impossible, but Bayardo acknowledged that the wounds were consistent with that sort of body position. Bayardo felt confident enough, however, to state, “Joste was shot at least once while he was lying on the ground. There were six shell casings from six bullets near the body. Another four shell casings were found in the bedroom.”
That was Bayardo’s professional opinion as medical examiner, but Bayardo was not a ballistics expert in general, nor an expert of the Glock 9mm specifically. Rhonda was using a Glock 9mm, which has certain characteristics. According to Rhonda’s attorney, just because there were six casings in the hallway did not mean that his client shot the gun in the hallway. He maintained that his client, in self-defense, shot Jimmy Joste in the doorway of the bedroom.
“Once you chamber a round and squeeze the trigger,” explained Rhonda’s attorney Joe James Sawyer, “a semiautomatic pistol literally reloads itself. It harnesses the energy of the expanding gases from a spent cartridge, and in a millisecond the slide comes back, the expended cartridge flies out, and the gases from the expanding cartridge load the second round. It slams shut and—literally as quickly as you squeeze the trigger—you are back in business. The speed at which the Glock reloads is one of its selling points,” said Sawyer. “You can empty the magazine before the first shell casing hits the floor. With enough adrenaline in your body, be it from fear or anger, you can empty that weapon into someone in less than three seconds.”
The placement of the shell casings ejected from the Glock was indisputable; the reason for that placement was open to dispute. Testimony by ballistics expert Greg Karim, firearm and toolmark examiner for t
he Austin Police Department forensic science division, could either bolster Sawyer’s contention that Rhonda Glover did not fire shots in the hall, or confirm the prosecution’s allegation that Glover continued shooting Joste in the hallway, even after he was dead.
First, of course, Karim’s duties and expertise were firmly established for the jury. “What we get is all the handguns seized off the street by the officers and sometimes by the surrounding counties, federal agents, such as ATF, FBI, DEA,” said Karim, explaining his duties. “What we do is an extensive examination of the firearm, and we test-fire it. We put it in a national database to see if it was used in another crime somewhere else.
“When we get fired projectiles, bullets, fired casings that are submitted as well from crime scenes from patrol officers, and from detectives, we will examine them, intercompare them on a piece of equipment called the comparison microscope, where I would compare all, for example, five casings that came from a particular crime scene to determine whether or not they were fired from the same gun, and place those in the computer system and see if there is another shooting involved with that same gun.”
Karim was specifically asked about the ejection characteristics of the Glock 9mm. “You would think that if you are pointing the firearm at a particular target, that the shell casings are going to eject basically in the same area,” Karim testified, “but with Glocks, that isn’t always so. One time it will go sixteen feet away. Next time it drops six feet. Next time it drops on top of your nose or gets stuck in your glasses.”
That was exactly what Sawyer wanted to hear. Karim was essentially saying that Rhonda could fire the gun in the bedroom, and the shell casings could wind up in the hallway.
Bryan Case, however, was adamant about the “common sense” story told by the placement of the shell casings. “The shell casings from a Glock nine millimeter hit the ground pretty fast,” said Bryan Case. “You pull the trigger four times in the bedroom, and it is most likely that there are going to be four shell casings in the bedroom. You pull the trigger six times in the hallway, and there are going to be six shell casings in the hallway. You don’t pull the trigger ten times in one room, and have six of the shell casings land on the floor in another room. It can happen—I’m sure if they bounce off a wall or something—but I think the shell-casing placement in the Joste residence indicate exactly where she was when the shots were fired.”