Love Me or Else

by Colin McEvoy

  After a few moments of silence, the security guard asked, “Aren’t you going to answer her?”

  “No,” Stumpo said. “I’m not going to answer her. That’s ridiculous.”

  And the four remained completely silent until the guards came back to take Mary Jane away.

  CHAPTER 36

  Mary Jane Fonder’s trial for first-degree murder also would take place in the Bucks County Courthouse, located in the historic town of Doylestown. The 8,227-person borough was founded in 1745, and the quaint town retained much of its historic character through the preservation of many older buildings. Doylestown’s postcard-perfect business district flourished through business from the courthouse and adjacent county offices, and also through weekend bed-and-breakfast-type tourism.

  The start of Mary Jane’s trial was scheduled for 9 o’clock the morning of Monday, October 20. A large crowd of reporters waited for Mary Jane to make her entrance into courtroom #1 at the Bucks County Courthouse, a large and historic room where portraits of retired judges line the walls. It’s also often used for ceremonial gatherings.

  At the courthouse, sheriff deputies escorted defendants from the adjacent jail, down a long public hallway and into the courtroom. The reporters waited for Mary Jane in the hallway. In addition to The Intelligencer, the trial also drew The Philadelphia Inquirer, and several of the Philadelphia news stations plus both daily newspapers in the Lehigh Valley—The Express-Times and The Morning Call—as well as the Lehigh Valley television news station, WFMZ.

  As Mary Jane was brought into the hallway leading to courtroom #1, the crowd of reporters swooped in on her. How was she doing? they asked. Did she have anything she wanted to say?

  Mary Jane, dressed in a black-and-gray floral dress with a gray-checkered jacket on top, sure did.

  “I’m a victim with Rhonda,” she said. “I’m the second one from the church.”

  Pressed for any more words, Mary Jane continued: “All I can say is I’m innocent and I didn’t do it.

  “I did nothing,” she concluded before she was escorted into the courtroom.

  The trial hadn’t even started yet, and already the media had a story.

  The rest of the first day was far less exciting. Prospective jurors were called fifty at a time. They were asked question upon question, including whether they had read or listened to media reports of the highly publicized case. Thirty-two of the pool of fifty had. Judge Boylan also asked if any of the potential jurors attended or knew anyone who attended Trinity Evangelical Lutheran Church; none did.

  First Assistant District Attorney Zellis asked whether knowing Rhonda was bipolar would affect any jurors’ judgment. A few jurors said they knew people with the disorder, but it would not affect their objectivity. Defense attorney Michael Applebaum asked whether any of the jurors had strong opinions about gun ownership. About ten raised their hands indicating they did.

  By 2:30 p.m., twenty-four of the pool of fifty had been dismissed. Another thirteen were kept after court was dismissed in the afternoon for private question sessions with Boylan, Zellis, and Applebaum.

  * * *

  The trial resumed at noon on October 21, when a second pool of fifty potential jurors were called in.

  Zellis didn’t take into consideration Mary Jane’s age or religious beliefs during his jury selection, but rather just stuck to his general strategy when picking jurors. He generally tries to stay away from younger people, because he feels their threshold for what constitutes reasonable doubt is greater than that of older people. He also regularly passes on teachers and social workers, who he feels are more forgiving than most.

  In the end, a jury of seven men and five women was selected, along with four alternates. The jury included a wide range of professions, including an educator, a nurse, and a law enforcement official. Once jury selection was completed, the trial was off to a late start, so there was only enough time left that day for Zellis’s opening statement.

  Zellis pointed out that there were many things Mary Jane wanted that Rhonda ultimately got, including financial assistance from the church and being asked to be the substitute church secretary.

  “You’ll see the root of this tragedy—this catastrophe—is the ego and the jealously of Mary Jane Fonder,” he said.

  Zellis laid out the timeline of the week before Rhonda’s death, and how event after event increased Mary Jane’s jealousy.

  “There was only one person who had the malice in her heart. There was only one person with the motivation. There was only one person with a specific intent to premeditate and kill Rhonda Smith,” he said.

  In addition to being jealous, Zellis also portrayed Mary Jane as manipulative, pointing to the many sympathy cards she wrote and the visit to the Rhonda’s parents where she came with an apple pie and left with some of Rhonda’s shoes.

  Zellis also laid out some of the physical evidence in the case. Law enforcement officials had proven a gun Mary Jane owns was the one used in Rhonda’s fatal shooting, he said. Gunpowder residue was found in Mary Jane’s car and bullet fragments found in her brother’s car—which she borrowed—matched the bullets found inside Rhonda, Zellis said.

  “You’ll see the diligence of the hard work of law enforcement,” he told the jurors.

  * * *

  With District Attorney Zellis closing out day two of the trial, defense attorney Applebaum got to open day three.

  In his opening statement, he discussed possible alternate theories in the case, including whether Rhonda’s death was a suicide, as authorities initially considered.

  “Initially they thought it could be a suicide, but the gun wasn’t there,” he told the jury. “Possibly somebody assisted a suicide and cleaned it all up.”

  Applebaum also brought up another avenue authorities looked into early in their investigation: whether Rhonda had been dating a married man.

  “There’s a possibility, somebody, a jealous wife, somebody, possibly the man she was dating,” he said. “There was a reason she was killed.”

  But Mary Jane Fonder, on the other hand, had no reason to kill her, he argued.

  “She wasn’t jealous of Rhonda Smith,” Applebaum said. “You won’t hear anyone from the congregation say she said a bad word about Rhonda.”

  Applebaum alleged that the prosecution’s case was weak, saying they had some evidence, but most of the case was based on speculation.

  “They’re going to give you a box with two hundred of the one thousand pieces you need to put it together,” he said, comparing the case to a jigsaw puzzle.

  After Applebaum’s opening statement, the prosecution started on its lengthy list of witnesses, including eight alone who testified October 22. The young Garrett Sylsberry, who found Mary Jane’s gun on the lakeshore, appeared at ease on the stand, and even got a few chuckles out of the crowd when Applebaum joked with him.

  Garrett and his father, Doug, both testified that the gun was relatively rust-free when they found it.

  “It was, like, perfect,” Garrett said. “There was no rust or anything. It looked like it had just been tossed.”

  An avid scuba diver, Applebaum personally did not believe the lack of rust on the gun necessarily indicated it had been underwater for a short amount of time. Oxygen is required to produce rust, and Applebaum tried to argue the low levels of oxygen underwater could have kept the weapon relatively well preserved.

  However, it would have been covered in moss and other plant growth. Applebaum argued that Doug Sylsberry, a gun collector, had cleaned off the revolver after discovering it in the lake with the intention of keeping it for himself. When he later decided to inform police instead, the attorney said, he lied about the condition in which it was found. Doug denied this when questioned on the stand.

  The day’s testimony also included the playing of Judy Zellner’s emotional 911 call after she found Rhonda dead in the church.

  Zellis asked Judy if she had helped Rhonda commit suicide, one of the theories raised by the defense
.

  “No, I didn’t,” Judy answered unequivocally.

  * * *

  The parade of prosecution witnesses continued on day four of the trial, with six giving testimony over the day-long hearing. The witnesses included several focusing on the scientific aspects of the case, including the forensic pathologist and the lead crime scene investigator.

  Pathologist Sara Funke detailed her ruling that Rhonda’s death was a homicide. She pointed to the spread-out gunpowder marks on her face and on the back of her right hand, which showed she was shot from about three feet away and raised her hand in front of her face when she was shot.

  “There is no way, in my opinion, a person can hold a gun and have that stippling on their face and right hand,” she said. “This is a homicide.”

  Applebaum suggested in his cross-examination a way in which it could have been a suicide. He asked whether someone could fire a gun three feet from his or her head and get stippling on their hands.

  The pathologist discounted his theory.

  “No,” she answered. “It would be blowing forward or sideways, but not on the back of your hand.”

  Applebaum made greater headway with Trooper Louis Gober, the lead crime scene investigator who had to explain why Mary Jane Fonder’s fingerprints weren’t found at the crime scene.

  “She could have been wearing gloves that day,” he said. “Her hands could have been dry.… She could have touched something in the office and not left a latent fingerprint behind.”

  Several surfaces in the church were not very receptive to picking up fingerprints, including the side exterior door and the office door, Gober testified. Doors were frequently touched places so fingerprints were often removed when others touch the surface, he said.

  Applebaum suggested maybe Mary Jane’s fingerprints weren’t at the church because she wasn’t there the day Rhonda died.

  Gober had an answer for that, too.

  “I would say the simplest reason why her fingerprints weren’t there is she didn’t touch the items I tested,” he countered.

  Applebaum also grilled Gober on other aspects of his work. First, he questioned why the police didn’t engage in “stringing,” a practice of setting up a series of strings around at the crime scene to determine where the gun was fired from. Gober said the police believed taking still photographs of the scene was sufficient.

  “In this instance we were not sure whether the person was standing,” Gober said. “We were not sure initially if it was a homicide or not.”

  “Initially you thought it might be a suicide?” Applebaum asked, happy to emphasize that point.

  “Initially, we did not understand what it was,” Gober said. “We just knew we had a victim with possible gunshot wounds to her head and we were trying to keep an open mind as to what occurred. We attempted to treat the scene as a homicide, that being the most serious of offenses. But we weren’t sure as far as to what exactly happened. Again, we were trying to let the physical evidence show us where to go next.”

  Applebaum also pressed him on his method of searching Mary Jane’s car for gunpowder residue. He criticized Gober for searching the car while wearing his police uniform, which easily could have carried gunpowder residue. What, Applebaum suggested, if the residue from their uniforms transferred into the car? Applebaum also questioned why police did not check her car service records, to see if a recent repairman who was a hunter could have transferred gunpowder residue into her car.

  Then Applebaum brought up a two-minute phone call that took place at the church at precisely 12:07 p.m., according to phone records. That was more than an hour after Rhonda was supposedly shot at 10:55 in the morning. If Rhonda was still alive around noon, as Applebaum was trying to suggest, then Mary Jane couldn’t have killed Rhonda because she was out at her hairdresser’s appointment.

  Zellis was blindsided. He prided himself on being extremely prepared for his cases, and he had no idea about this phone call. How do I not know about this? he thought.

  Applebaum asked how Rhonda could have been on the phone for two minutes if that time of the shooting was correct. Gober had no sufficient answer to offer.

  Applebaum also asked about a videotape that was filmed of the crime scene, which had gone mysteriously missing. Gober had misplaced the tape and, although Zellis knew it ultimately didn’t make a difference for the investigation, he also knew it could look bad in the eyes of the jury.

  “Now, I heard you testify that you took a video?” Applebaum asked.

  “Yes,” Gober said.

  “So that people could get it right on the investigation?”

  “Correct.”

  “I haven’t seen that video and asked for it, and was told you lost it,” Applebaum said. “Is that true?”

  “That would be correct,” Gober replied.

  Later, during redirect questioning, Zellis tried to mitigate the damage. He emphasized that the still photographs were the primary way of documenting the scene, and asked Gober whether the video was simply an extra copy of those images. Gober happily responded in the affirmative.

  The day’s testimony greatly rattled Zellis. Applebaum was calling everything the investigators did into question, alleging they forgot to take crucial steps in some of the procedures they followed. They messed up, possibly contaminating the evidence, according to how Applebaum was portraying it. It was a page straight out of the O. J. Simpson defense.

  But Zellis was particularly upset about the mysterious two-minute phone call that Applebaum brought up. During a break in the trial, he pulled Stumpo and Egan into his office and demanded an explanation. The troopers believed they understood perfectly well what the phone call was: Somebody had called the church and left a phone message.

  Zellis, whose emotions had been building up all day, unleashed onto the two troopers. That explanation could very well be correct, he said angrily, but why didn’t he know about it? That call was on the phone records the police reviewed, and the answering machine tape was available to take as evidence. It was an oversight that shouldn’t have happened, and because it did, they were caught unprepared in trial.

  Zellis didn’t think the phone call was going to make or break the case, but that wasn’t the point. Applebaum was trying to portray the authorities as bumbling idiots, a bunch of Keystone Kops who didn’t know what they were doing. Even if Applebaum didn’t have one big “gotcha” moment to prove his point, if he could present enough little setbacks like this, his defense could end up a success, Zellis said.

  “A jury trial is no different than a boxing match,” he told the troopers. “You hope you don’t get knocked out in the first round, but here it’s body blow after body blow. And if he keeps scoring these body blows, at one point we’re going to go down if we don’t fix this. So get your act together and let’s get going here!”

  CHAPTER 37

  The fifth day of the trial was another difficult one for the prosecution. State police ballistics expert Mark Garrett was called in to demonstrate how Mary Jane’s gun worked. But, after opening the cylinder and loading the bullets in, Garrett couldn’t get the cylinder closed again.

  “I, um, I can’t get it to shut,” Garrett said sheepishly.

  Oh no, Zellis thought, the O. J. Simpson case flashing in his head again. He recalled the infamous moment when Simpson tried on the glove he allegedly wore the day of the murder, and it didn’t fit. The moment that many felt directly led to Simpson’s acquittal. If the glove doesn’t fit, you must acquit.

  Applebaum, of course, looked as if he had just been handed a newly wrapped Christmas present.

  Sitting in the audience, Greg Stumpo shared Zellis’s concerns, and he found it difficult to restrain himself from walking up and helping Garrett. Stumpo knew exactly what the problem was, and it had nothing to do with the gun being defective. Once the cylinder of the revolver pops open, a small rod pushes out slightly and, if not adjusted back into place, the cylinder won’t close. All you have to do is push the rod a tiny bit wi
th your thumb and it could snap shut, but Stumpo was all too aware how bad this looked to the jury.

  Holy cow, Stumpo thought. I don’t believe this.

  After another minute or two, Garrett finally got the gun shut. But that didn’t stop Applebaum from pointing out the gun’s failure during his cross-examination.

  “If you can’t close this, you can’t fire the weapon?” he asked.

  “Correct,” Garrett said.

  Applebaum also got the prosecution’s gunpowder residue expert to admit that his theory about residue transferring from police uniforms onto other items was possible. After Elana Foster testified gunshot residue was found in three places within Mary Jane’s car, Applebaum asked her if she had read studies naming police stations as one of the most prolific places to find gunshot residue. She said she was familiar with some tests showing residue in the backseat of police cars.

  “Gunshot residue can be transferred,” Foster said. “We can say the particles are present but how they got there, when, and from whom we can’t say.”

  * * *

  After a weekend off, the sixth day of the trial started with Ed Fonder testifying for the prosecution. Fonder, who was called because of the bullet fragments found in his car, was straightforward and precise in his testimony, unemotional in what must have been a difficult situation testifying against his sister.

  He testified that he found two bullet fragments in his car on April 9, about two weeks after he lent the car to his sister. He turned the fragments over to state police after consulting an attorney, he said.

  “I said, ‘I have something that may be of evidentiary nature in my car,’” he said during his testimony.

  The day’s prosecution witnesses also included a chemist who testified about Mary Jane’s assertion that she threw her gun in a lake fourteen years ago. It was impossible, he said, considering the very small amount of rust on the gun.