“Yes, I believe I did.”
Matthews and Kathy talked about the statement being videotaped.
“Do you recall that you told the Arizona police that it was Jennifer that wiped off the fingerprints [from] the gun?”
“No.”
“You didn’t tell them that?”
“I don’t recall that.”
On the videotape, Kathy told the Arizona Police Department that Jen explained to her how she had wiped off the weapon; and while Jen said it, Kathy thought, Oh, good—at least they won’t get Jennifer’s fingerprints off it.
“You don’t remember telling the Arizona police that?” Matthews asked.
Kathy thought about it. “I might have said something like that.”
The point was that Kathy Jones couldn’t recall a lot of what she had said. Thus, based on that and her criminal history, her testimony shouldn’t be taken at all seriously. How could jurors be expected to believe one statement and not the other? Here, clearly, Kathy had thought she said one thing, but she had said something entirely different.
There was some discussion about the videotape and authenticating it, but Matthews’s point had been made.
The day ended with Kathy on the stand.
On the following morning, November 30, 2005, Kathy Jones came in for a few brief moments, answered several inconsequential questions, and was shipped back to her prison cell.
Detective Brian Boetz was next. Boetz walked jurors through the crime scene and how the MWPD came up with Bobbi as a suspect based on that interview with Dorothy Smith. For anyone seated in the courtroom, it might have seemed that Mike Burns skipped over the entire investigation portion of the case—and for good reason. There were no phone records to discuss. There were only a handful of interviews conducted with the main players. And there was no ticking-clock chase to track Jen and Bobbi down, although they had been branded “armed and dangerous” in every APB that had gone out. It was as if the MWPD found a body, felt they had their killer, and then sat back and waited for the girls to emerge. In the scope of murder investigations, it was a rather open-and-shut case. To the MWPD, there were no other suspects beyond Bobbi at first—and then Jen, after Krystal Bailey returned to Mineral Wells and gave her statement.
Quite shockingly, Burns had Boetz read Bobbi’s first statement, which the state, the MWPD, and Bobbi had rejected—all of whom had admitted at one time or another that it was inaccurate and blanketed with lies. Burns himself had called the document “hogwash” during Jen’s court case.
At one point, Burns asked Boetz what he did after they got back from Blythe and he decided Jen and Bobbi’s first statements did not mesh with the crime scene.
“We made an appointment with a polygraph examiner in Fort Worth.”
“So, did you take the defendant to Fort Worth?” Burns asked.
“Yes, sir.”
“So what happened when you got to Fort Worth?”
Boetz explained how the girls “broke down” and “started crying” and claimed they had been lying, but now they wanted to tell the truth.
The Behavioral Measures & Forensic Services institute, where the polygraphs had been scheduled, is located in Dallas, not Fort Worth. (Boetz made a point to correct this later when I asked him about it. And yet, in a court of law, on the stand, Boetz or Burns could not get this simple fact right.)
Then Burns had Boetz read Bobbi’s second statement. In that statement, Bobbi told a story of her mother going into the house with her and Jen after they went back to Bob’s on the day of the murder. She also said Jen admitted killing Bob after they arrived at the Spanish Trace Apartments. And when Kathy Jones stood in the kitchen and asked why, Jen responded, “Because I’m tired of what he is doing to Bobbi and the rest of these little girls.”
Motive.
Implicating herself in Bob’s murder, essentially the only evidence this second statement produced, came when Bobbi said she had asked Jen, “Is he dead?” And Jen responded, “Yes.” To which, Bobbi said in that second statement, “Make sure.”
“So the defendant told you in that [second] statement that she broke into the green trunk?” Burns asked Boetz.
“That’s correct.”
“And that she broke into it and obtained a twenty-two pistol out of that trunk?”
“Yes, sir.”
After taking those second statements from the girls, Boetz said, the MWPD believed they had a solid case of murder against not only Jen, but now Bobbi, based on those few lines in Bobbi’s and Jen’s second statements.
“Aside from a few other things, did that pretty much complete your investigation?” Burns concluded.
“Yes, sir.”
“What did you do when your investigation was completed?”
“I submitted the case to the DA’s office.”
CHAPTER 60
JIM MATTHEWS FOCUSED HIS cross-examination of Brian Boetz on the trunk, asking, “So you have no idea who pried [the trunk] open?”
“That’s correct,” Boetz admitted (contradicting his prior testimony).
Matthews established how there was no forensic evidence pointing to anyone in particular as the person responsible for prying open the trunk.
“Okay, so it’s possible then,” Matthews pondered, “that it could have been pried open by someone other than Bobbi Jo?”
“It’s possible,” Boetz answered. “But Bobbi Jo said in her second statement that she pried it open.”
(Actually, Bobbi said in that statement that she “broke into [it].”)
Matthews had Boetz explain how Bobbi became a suspect in the actual shooting based on the statements from the Cruzes and Dorothy Smith, adding, “And in looking at that information now, that absolutely is not the truth, is it?”
“No, sir.”
Boetz said he did not believe Bobbi’s or Jen’s first statements, but he did believe their second statements.
Matthews asked, “Seems like in Bobbi Jo’s statement, you read where Jennifer Jones and Mr. Dow apparently was engaged in—he was performing oral sex on her, Bobbi Jo walked in the room, and Jennifer turned to Bobbi Jo and said, ‘Get the [heck] out of here’?”
“Yes, sir,” Boetz said.
“So that sounded like Jennifer was telling Bobbi Jo what to do?” Matthews suggested.
“I suppose.”
An interesting exchange between Matthews and Boetz came at one point when Matthews asked Boetz about his interview with Dorothy Smith, Bobbi’s grandmother, and the Cruzes. Without perhaps realizing it, Boetz brought out an important piece of exculpatory evidence, proving how Bobbi had lied in her statements to police, perhaps revealing why Mike Burns had not called Dorothy Smith to the witness stand.
“Okay, and Bobbi Jo told them [the Cruzes and Dorothy], apparently according to your conversation with [them], ‘I shot Bob . . . ,’” Matthews said.
“Yes,” Boetz responded.
“And looking at that information now, that absolutely is not the truth, is it?”
“No, sir.”
Mike Burns called Captain Mike McAllester and Dr. Joni McClain (who was not the ME who conducted the autopsy on Bob Dow, but managed the person who did), and both explained their roles. Jim Matthews, then, did not question them at any length or with any obvious agenda, and the state rested.
In total, Mike Burns had called seven witnesses, none of whom gave him that thunderous, slam-the-book-on-the-table piece of devastating evidence to bury Bobbi and prove she had masterminded what Burns projected to the jury as a diabolical plot to murder Bob Dow so Bobbi and Jen could ride off into the sunset together.
After hearing the state’s case, jurors had to wonder where the rest of it was. If Dorothy Smith’s and Richard and Kathy Cruz’s original statements to police had been so revealing and incriminating, why hadn’t Burns called them? Likewise, if Bobbi’s mother could verify parts of the girls’ second statements (because she had been there for most of that day, save for the murder), why hadn’t the state called h
er?
During Matthews’s cross-examinations of Brian Boetz and Mike McAllester, it became clear there was zero forensic evidence linking Bobbi to Bob Dow’s murder. And even the green trunk, which Bobbi, in her second statement, admitted breaking into to retrieve a gun, did not produce any fingerprint evidence that Bobbi had ever touched it. All of the forensic evidence the prosecution had was Jen’s, which included blood on the back windowpane, blood in Bob’s room, and the bodily fluids found on Bob Dow.
The bottom line for Matthews was that as soon as the MWPD and the prosecutor’s office got hold of Bobbi’s second statement, their investigation—about five days old at that point—ceased. There was no reason for them to go any further. They took one line from Bobbi (during her second statement) and believed it was enough to bring it to a grand jury and get a conviction if the case went to trial. In fact, Matthews was able to draw out of his cross-examination with Boetz and then McAllester that no investigatory body working on Bob Dow’s murder did anything after those second statements from the girls had been taken. No investigator went out and backed up (or checked out) with corroborating witnesses, interviews, or evidence what Bobbi or Jen had said.
From where the MWPD had seen the case, they had gotten confessions and the case was closed. There was no need to follow up.
CHAPTER 61
JIM MATTHEWS BELIEVED his client was innocent. At best, Bobbi could be brought up on a lesser charge. But, for crying out loud, murder? All because she said in a second statement to police (in which several things she admitted to in that same statement could be proven false), “I gave Jennifer the gun”?
Looking at all of the evidence (or lack thereof), one had to wonder how this case had even gotten to this point? There’s that old cliché that a prosecutor could indict a ham sandwich the way in which the system is set up, but this case proved that perhaps indicting a lesbian in the conservative state of Texas was a hell of lot easier than even that.
Interesting enough, in the second statement Bobbi gave after that failed polygraph, the phrases “I gave Jennifer the gun” and a few other lines (including, “I said, make sure”) were underlined in blue pen by someone. It was as if that person thought: That’s it. We got her. There it is!
In Jen’s second statement, she had said: “I walked into the bedroom, got the gun out of a green lockbox that was under another bed. I checked to see if the gun was loaded and it was loaded.... When we were between Graford and Bob’s house, I told Bobbi Jo that I was going to kill Bob. . . .”
Jen doesn’t even claim Bobbi gave her the gun and loaded it; and her statement contradicts what Bobbi said in hers.
Matthews wondered, Is that not the basis for reasonable doubt, or in disbelieving and tossing out all those statements entirely?
Matthews had a track record of wins behind him. A lot of those came, he said, “because I chose to put my client on the stand. Juries want to hear a defendant say she didn’t do it.”
Everyone wondered if Matthews would take that same approach here.
I asked Bobbi about the alleged marriage proposal Jim Matthews had referred to in his opening statement. To me, this was an interesting development. It showed, in part, how close Bobbi Jo Smith and Bob Dow were.
“Bob did ask me to marry him,” Bobbi clarified. “He said stupid shit all of the time when he was high. I’d always laugh at him. . . .”
This sparked an important point Bobbi later made—one that becomes imperative to insert here in her case as the defense portion of her trial was set to begin. As Bobbi explained to me, “And as for [Bob] wanting to marry me, Mr. Phelps, when people are strung out on drugs, they are not themselves. It’s something I can’t explain to you. You have to just be in the situation. . . .”
Opening Bobbi’s case, Jim Matthews called a woman, old enough to be a grandmother, who had come forward to say Jen had been bragging about killing Bob Dow while in jail. The woman had been on parole for four years, and she had done two and a half years for a drug-related felony. She was currently on parole for a charge of driving under the influence (DUI).
She admitted to drug and alcohol dependency. Yet, she added, “I’ll always have a problem, but I am in rehab. I attend AA meetings, and I go to Aftercare. And it’s . . . a disease, and I’ll always have it.”
“You know some things about the case, and you felt driven by your conscience and by the ‘do the right thing’ that you needed to contact me?” Matthews asked.
“Yes.”
“Was there a time that you ever met Jennifer Jones?”
“Yes, sir.”
Further along, after talking through dates and times and places, Matthews asked, “Did you ever have conversations with Jennifer . . . about the murder of Bob Dow?”
“Yes.”
“In those conversations, did Jennifer Jones ever make a statement to you that indicated what her motive may have been for killing him?”
Mike Burns objected. There was a fine line surrounding the hearsay rule. This witness could not testify as to what Jen might have meant, only what she had said directly.
After a rather heated discussion between the lawyers after approaching the bench, the judge listening closely, it was decided that Matthews could continue, but under certain conditions and restraints.
Matthews asked another round of questions and Burns objected, saying it was “leading.” Judge Ray kicked the jury out of the room so the lawyers could discuss the matter further.
When the jury was allowed back, Matthews was able to get his witness to admit that Jen did not only display zero remorse for killing Bob, but she had also laughed about the murder. It sort of fell in line with Kathy Jones saying earlier that Jen admitted feeling “pretty fucking good” after unloading that weapon into Bob’s head.
It’s called corroborating evidentiary testimony. And here it was.
Burns had no cross-examination questions for the witness.
Since Burns hadn’t, Matthews decided to call Richard Cruz and get his narrative of what happened.
Jim Matthews quickly had Rick Cruz describe how the information he gave to police was secondhand, from Dorothy Smith, and he had no “personal knowledge” of what Bobbi actually had said that day when she returned from Spanish Trace with all of the girls.
Burns asked Cruz a series of questions that spoke to Bobbi’s behavior outside the confines of the family. He even brought up Bobbi’s sexuality, asking, “Are you aware that she engaged in homosexual conduct with other women?”
“I did,” Cruz said.
Bob Dow’s first wife was called. She spoke quite pointedly about Bob’s infatuation with witchcraft and how he collected books on the subject.
Matthews brought in another witness who had come to him and said she had information about Jen. This witness had been in trouble with the law on drug-related charges, too. And she was now clean and sober, too. What was compelling about this witness and the first woman Matthews had called—both of whom had spent time with Jen in prison—was that neither of the women knew Bobbi. They’d had no contact with her.
Under the constraints of the court, this second woman could add nothing other than telling jurors that Jen was happy while the two of them spent time in jail together. The idea for Matthews was to have the witness, even in an indirect way, clarify that Jen was a cold-blooded killer, who did not care about taking another life.
Matthews paced a bit. It was clear he had other things to discuss with the witness, but he worried again about walking that fine line of hearsay.
The judge dismissed the jury so they could hammer it out.
The woman stayed on the witness stand. And without the jury present, Matthews continued asking questions.
She had spent about two and a half weeks with Jen in Palo Pinto County Jail. During that time, she had gotten to know her fairly well. As they talked, Jen said she had murdered Bob solely because “she was tired of being abused” by him.
“Anything else?” Matthews asked outside the presence of t
he jury.
“All the abuse.”
As Jen talked to her about the murder, the witness testified, she was unemotional. “The tone of her voice and the look in her eyes—she just, there was nothing.”
Not one time during that period they talked about the murder did Jen ever say Bobbi had had anything to do with the crime. In fact, the witness said she had not even heard of Bobbi’s name until much later on.
Mike Burns objected to the testimony being offered in front of the jury.
The judge agreed.
And so the witness was released—and Bobbi watched sadly as a potential lifesaver walked out of the courtroom without being able to tell her complete story to the jury.
CHAPTER 62
JIM MATTHEWS THOUGHT about having his client testify. It was a gamble every time. Those throws of the dice had paid off for Matthews in the past. But here, with Bobbi, there just weren’t any guarantees that the jury would sympathize with her. What’s more, Bobbi would have to sit on the stand and admit she had lied repeatedly to police. How could she convince the jury she was telling the truth now?
Then there was the question of her sexuality: What if she alienated one juror?
She was done.
“I would just like to ask . . . just to put it on record,” Matthews told the judge as he stood and addressed the court, “that Bobbi Jo Smith and I have had numerous conversations about the pros and cons of her testifying. And as our final decision, she has indicated to me that she does not want to testify. She wants to exercise her right to remain silent.”
This decision would become a contentious issue for Bobbi as we discussed it at length. Bobbi told me she wanted to testify, but Jim Matthews talked her out of it. Matthews told me he wanted her to testify, but Bobbi repeatedly said she was scared and couldn’t do it. It was a dilemma many defendants face afterward, and one I hear as a journalist all the time.
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