By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
"Yes," the retired detective said.
The long-held police theory got an ostensible boost in October 1999 by a federal prison snitch named Fred Tokars, whose essential role as the murder trial progresses is a huge part of this story.
Tokars told a Tempe detective what Ortloff (who was serving time for a different crime at the same federal prison unit as Tokars) allegedly had confessed to him some months earlier:
"Someone saw him leaving, and they — I mean it sounds sort of silly — but they even described his big feet. 'Cuz he does have enormously large feet. I mean, like, 13s or 14s."
That was what Ina Weisbaum had said years earlier, which excited authorities.
In January 2006, Dr. John DiMaggio, a "forensic podiatrist" hired by the prosecution, took measurements of Robert Ortloff's feet at the Maricopa County Jail by court order.
DiMaggio reported that Ortloff's shoe size is 12 1/2 to 13, which certainly qualifies as big.
But, after analysis of the photograph in the flowerbed, the podiatrist concluded that the footprint had been made by size-9 1/2 Nike sneaker, maybe a 10.
That dealt a huge blow to the prosecution's case because it doesn't take an expert to explain what that means — it's not Ortloff's print.
"If the size estimate is correct," DiMaggio wrote, "[Ortloff] could not have worn the shoe that made that scene shoe impression."
The reason the County Attorney's Office finally filed murder charges against Ortloff in 2003 was Tokars, a former Atlanta prosecutor turned murderer, money launderer, and drug trafficker.
Ortloff is serving a 50-year sentence on a 1986 conviction of mailing a homemade bomb from Tempe to a soldier at Fort Hood in Texas. It detonated, but the victim escaped serious injury.
That case, too, bursts with intrigue and controversy, and includes a notorious scandal inside the FBI's laboratory that may have affected the outcome.
Ortloff's conviction in his retrial (his first trial ended with the jury unable to reach a verdict — it was 10-2 for acquittal) also pivoted on the testimony of a jailhouse snitch.
Can one fellow wrongfully be accused of not one, but two serious crimes in a single lifetime?
No one would put money on that one.
But, surprisingly, it's within the realm of possibility in this sprawling legal epic.
"Weird things do happen in the justice system, believe me," Ortloff wrote to New Times in 2004, in one of hundreds of letters he's sent to the paper. "My legal situation qualifies as one of the weirdest."
It's tough to argue with him.
Tokars told authorities that Ortloff sought his legal help in continuing to appeal the 1986 mail-bomb conviction — about which Ortloff maintained his innocence throughout their short relationship.
But Tokars has claimed that Ortloff — an adept jailhouse lawyer himself — did come clean with him about killing Kathleen Smith.
"At the end, he was almost like a sniveling little crybaby, begging for my help," Tokars told a Tempe detective in October 1999.
"But for Frederic Tokars, this case would not now be filed," prosecutor Noel Levy wrote to federal authorities in 2002, in trying to expedite Tokars' transfer into the federal witness-protection program.
"Without Frederic Tokars, the state will not have the sole critical 'ear' witness definitively connecting Robert Ortloff as the murderer of Kathleen Smith."
The feds did place Fred Tokars into witness-protection, because of his "cooperation" both in the Ortloff case and in an Iowa murder case. The circumstances of his incarceration — or even whether he is locked up somewhere — remain a closely guarded secret, as his name does not turn up on a Bureau of Prisons "inmate locator."
But statements that Tokars has made about Ortloff's alleged confession suggest that, though his accounts have been detailed and sophisticated, they are deeply suspect and refutable in key aspects.
(Part two of this series next week will explore how Fred Tokars conned local authorities into believing that Ortloff confessed to him.)
The disgraced Atlanta barrister, who also once served as a part-time judge, was sentenced in 1992 to four life sentences without parole on murder and racketeering convictions.
In 1992, Tokars orchestrated the assassination of his wife, Sara, to prevent her from exposing his underworld activities, which included drug-trafficking and money-laundering operations, and also to collect $1.7 million in life insurance.
A hired killer shot Mrs. Tokars in the head in front of her sons, 7 and 4, near the couple's suburban Atlanta home.
Like Ortloff, Tokars never has admitted guilt in any case.
In early 1984, Robert Ortloff and Kathleen Smith entered into a partnership to open a Subway franchise.
They named their new company ROKS Incorporated, combining the initials of their names. Theirs would have been only the third Subway shop in Arizona.
The venture mostly had been funded through a $50,000 banking line of credit co-signed by Kathleen's father, David, who owns waste-management firms in northern Arizona and New Mexico. Of that amount, $35,000 immediately was available to the young entrepreneurs.
Prosecutor Levy will present testimony that Ortloff was in desperate financial straits before Kathleen's murder.