By New Times Staff
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Ray Stern
By New Times Staff
By Stephen Lemons
By Chris Parker
Lisa's maternal grandmother, retired nurse Ina Weisbaum, had been staying there, and the pair liked to keep an eye on the pets to make sure they didn't stray.
Lisa lived in Unit 111, in the southeast section of the SceneOne Condominiums, a few minutes west of the Arizona State University campus.
She was just inside the condo when her grandmother came in to report that she'd heard an odd noise and suspected the cats were fighting.
The two went back out to see what was up.
"I heard something like a slamming of the door," she said later. "I turned around and I saw this man coming out of Kathleen's apartment."
Kathleen was Kathleen Marie Smith, a 20-year-old who lived alone in Unit 110, about 20 feet around a corner.
Lisa Pickett hadn't actually seen the man close Kathleen's door, but he had come toward her and her grandmother directly from the area of 110.
"He saw me, and all of a sudden he just took off running from her door around in front of my apartment on the sidewalk," Lisa said. "My grandmother was in this little pathway between the two apartments, and he had almost practically knocked her over because he stepped in the flowerbed."
Lisa and her grandmother described the man as blond-haired, fair-skinned and wearing red shorts, a white T-shirt, and sneakers.
The guy had seemed familiar to Lisa. "But it was not a face who was around a lot," she said. The man didn't have facial hair, she said, a noteworthy observation in light of what followed.
Ina Weisbaum told a private investigator in 1985, "He was just a madman, boy. I've never seen anybody move so fast in all my life."
She made another point that would come into play more than two decades later, long after her death in 1994: "His foot was in the mud here and I thought, 'Oh, my God, what big feet.' That was what come into my mind."
Right after the man vanished into the 120-unit complex, Lisa and her grandma became distracted by the sight and smell of black smoke seeping out of Kathleen's front door — the only way in and out of Unit 110.
Lisa tried to open the door, but it was locked.
Other neighbors had rushed over when two engine companies from the Tempe Fire Department reached the scene at 10:42 a.m.
Firefighters broke down the door and entered the burning condo. They quelled the fire within minutes, but the thick smoke didn't allow them to immediately see a body on a floor near the laundry room.
Then they did. Two firefighters carried the obviously dead victim outside to a sidewalk. It was a young woman whose face had been burned beyond recognition.
Eerily, though, a gold necklace with a pendant that said "Spoil Me" had remained intact around her charred neck.
The firefighters found her face-up, and her back seemed mostly unscathed by the flames and intense heat. The victim also had a deep, fresh wound to the back of her head, as if someone had bludgeoned her.
Tempe fire investigator Al Haeberle entered the smoldering condo. He saw the body of a small, gray cat that had died on the dining room floor, apparently of smoke inhalation. A parrot also was dead, at the bottom of its cage.
The investigator also found a burned Clorox bottle in the laundry room that smelled strongly of gasoline.
As for the fleeing man's "big foot," Lisa Pickett and her grandmother directed authorities to his footprint, saying they saw him make it in the wet flowerbed. It was if he'd stuck his hand into a freshly poured sidewalk at Grauman's Chinese Theatre in Hollywood.
Though police generally find eyewitness testimony flawed, that kind of identification seemed different.
A crime-scene technician placed a ruler next to the pristine print and took black-and-white photographs.
Now, 23 years after Kathleen's murder — one of the highest-profile crimes in Tempe history — that footprint will loom large at the trial of her alleged killer, 47-year-old Robert Ortloff.
Trial testimony is scheduled to start February 13 in Maricopa County Superior Court Judge Warren Granville's courtroom.
As Robert Ortloff's trial gets started, nagging mysteries and contradictions about him and his murder case remain. Some things can be sorted out; some cannot.
Veteran Deputy County Attorney Noel Levy will have the task of trying to prove to a jury that Ortloff is guilty of first-degree murder, arson, and burglary.
Levy may be right when he claims that Ortloff is an evildoer who deserves to spend the rest of his days behind bars (prosecutors decided to drop the death penalty last year after originally filing the case as a capital crime).
But reasonable doubt blankets this case as densely as the terrible smoke that enveloped Kathleen Smith's condo so long ago.
For starters, there's the footprint in the flowerbed that police long believed was made by Kathleen's killer.
"There was reason to believe that the assailant left a footprint in the muddy flowerbed outside Lisa Pickett's apartment?" Ortloff's attorney, assistant public defender Dan Patterson, asked original Tempe case agent Hal McCormick last year.
"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.
For one thing, Ortloff's family apparently had been pressuring him to repay $7,500 that he stole from his paternal grandfather, Anthony, in June 1984.
Levy will allege that Ortloff took $7,000 out of the ROKS business account to pay back that ill-gotten gain without Kathleen's knowing about it.
The prosecutor says Kathleen discovered that the ROKS account had been almost depleted by Ortloff's sneaky move, and she'd been planning to go to her bank hours before she died to ask questions.
Under the state's theory, Ortloff murdered her before she got there, and before Kathleen or others went to the police or to her volatile father.
Another stated motive is that Ortloff stood to collect $125,000 in two insurance policies on Kathleen's life that listed him as sole beneficiary. For various legal reasons, he never did collect any of that money.
Fred Tokars is expected to testify Ortloff told him that he went to Unit 110 with a small container of gasoline and rope, intending to strangle Kathleen and then burn her and the condo to destroy incriminating evidence.
Ortloff's adversaries point to scratch marks visible on his neck after the murder and to a toe he broke that day as circumstantial evidence of a brawl at the condo that ended in Kathleen's homicide.
But actual physical evidence against Ortloff was (and still is) nonexistent. Just as important, the circumstantial evidence against Ortloff is anything but ironclad.
For example, witnesses — some of whom are no friends of Ortloff's — told police they had seen him about 10:30 a.m. at Fiesta Flowers, the shop at 48th Street and Southern that he was managing.
That was 10 minutes or so before anyone noticed the smoke wafting out of Kathleen's condo.
Keep in mind that Tempe fire investigators have said (contrary to what Fred Tokars later would allege) the condo ignited almost immediately because of the gasoline. That would have been about 10:42 a.m., which is when the first 911 calls came in, right after Lisa Pickett and Ina Weisbaum saw the fleeing man and then saw smoke coming out of Unit 110.
Ortloff always has claimed he got the easily visible neck scratches at the flower shop later that day when a particle-board shelf fell on him as he slipped off a ladder in the back room. As for the broken toe, he says he kicked a cabinet in dismay after learning shortly after noon about the discovery of a body at Kathleen's burned condo.
That account will be corroborated at trial by witnesses who saw Ortloff at the flower shop in the home immediately after Kathleen's body was found but observed no scratches on his neck or any signs that he'd hurt his toe, such as a limp.
Despite all that, Ortloff certainly fit as a solid suspect.
But there were others, including Rick Schibler, who then was (and still is) the Subway chain's development agent for Arizona.
Then 39, Schibler had opened the state's first two Subway franchises in 1982 — one on 10th Street and Mill Avenue and the other at 48th Street and Southern, next to Fiesta Flowers.
Shortly before she was murdered, a fuming Kathleen Smith told her mother that she was thinking about contacting Subway's home offices in Connecticut after learning that Schibler had "stolen" her preferred franchise site for one of his family members.
One reason for her anger was that the replacement site Schibler had identified for her and Ortloff's proposed franchise already had been a financial disaster, with no end in sight to the troubles.
Schibler's alleged breach of ethics (which he denied in an interview with Ortloff's attorney last October) might not have sat kindly with the bosses of a company then on the cusp of making a major move in Arizona's fast-food market.
Also to be considered is the personal relationship that Kathleen and Schibler had developed before her death.
How personal remains unclear, and Schibler has denied any romantic entanglements with her, but one of Kathleen's best friends said in 1985 that Schibler definitely had designs on Kathleen.
A private investigator asked a former roommate of Kathleen's in 1985 whether Schibler ever had spent the night at the condo with the young woman.
"I think he did, but I'm not sure," the roommate answered.
Schibler's account of what happened to him during the critical morning hours of October 5, 1984, and what he told police afterward also raises serious questions:
Schibler has said that he sustained a gash to his left ring finger at his Subway shop sometime after 10 a.m. that day and necessitated a trip to a hospital for 12 stitches. But corroboration of how he injured himself and what he did immediately thereafter is shaky.
Just as disturbing is what Rick Schibler said to detectives when they interviewed him a few days after the murder. Tempe detective Gary Lindberg referred to those unrecorded statements in a second session a week later.
"You asked me if I thought she had suffered," Lindberg told Schibler. "I told you we couldn't go into specifics.
"You made a comment that you didn't understand why somebody would hit her on top of the head and then burn her place. Was that from you, were you drawing a conclusion from all your conversation with other people, or what?"
Schibler fumbled his way through his response: "No, that was just, yeah, that, well, that, no, I don't know that was that. It was just more of a generalization, you know . . . Okay? You know, knock her out, you know, get her, and burn her place as opposed to a specific way that it happened, whatever it was . . . But I don't recall anybody ever saying to me that she was hit over the head. It was a general comment."
Even the Smith family hadn't yet been told about the exact circumstances of Kathleen's death, other than the obvious, that she'd been badly burned in the fire.
Rick Schibler declined to speak with New Times, writing in response to a request for an interview, "I'm not interested in revisiting this story. I'm confident Mr. Ortloff will get his due."
Schibler's attorney, Greg Clark, failed to respond to a phone call and an e-mail from New Times seeking comment.
For the record, Schibler has always denied wrongdoing in the Kathleen Smith murder case.
Tempe detectives never showed a photo of Schibler to eyewitnesses Lisa Pickett and Ina Weisbaum, even though the two had described a blond-haired man, which Schibler was at the time.
According to a police report, Pickett did pick Robert Ortloff and an unidentified man out of a six-man photo lineup as most resembling the guy she'd seen running from Unit 110. But Pickett also told police that she hadn't gotten a real good look at the man and wasn't at all sure that she was right.
Ortloff didn't fit the description that the pair first gave police. He wore a dark mustache at the time and had black hair.
Detectives also showed Ina Weisbaum the same photo lineup, but the grandmother was adamant that none of the subjects resembled the man who had barreled past her.
Notably, Tempe police never filed a report about Mrs. Weisbaum's non-identification of Ortloff.
That she even had been shown a lineup only came to light when an investigator who worked for Kathleen Smith's father turned over his notes and tapes to prosecutors after Ortloff's murder indictment in 2003.
Kathleen Smith was born in El Paso, Texas, in 1964, the youngest of David and Carol Smith's three children (the couple had twin boys). The Smiths moved back to the Valley about six weeks after her birth.
David Smith's father-in-law introduced him to the waste-management business, and Smith later opened his own very lucrative companies.
Carol Smith immersed herself in community activities after the couple returned to the Valley. Kathleen's mother, who died last summer, served several terms on the Tempe City Council in the 1980s and '90s.
In the 1960s, Carol met Claire Ortloff, a New York native and mother of six who was married to an aerospace chemist, William.
Robert was the Ortloffs' second child, and he was about four years older than Kathleen.
The two families socialized together, and Kathleen and Robert's sister, Mary, became best friends.
Carol Smith later said that the first word out of her daughter's mouth was "horse." Kathleen eventually became a national-level competitive rider of Arabians and always had a love of animals.
From a young age, Kathleen demonstrated a true independent streak, and always let people know just where she stood.
Photos of her taken shortly before she died show an attractive girl with soulful eyes and a determined look.
She had a serious boyfriend while attending Corona del Sol High School, from which she graduated in 1982. The two eventually split up, though they remained friends until she died.
Kathleen's parents were divorced in 1981, and it was not an amicable end to the 25-year union.
Robert Ortloff was a bright youngster with musical aptitude (he played drums) and a knack for repairing things. But he became an underachiever at school, and dropped out during his junior year.
In 1978, he fathered a child, with whom he had little contact until recently, when she contacted him in prison.
Ortloff moved in 1981 to Southern California, where his father's job had taken him, and found work at a flower shop in Irvine.
That year, the young man befriended a customer who was a college freshman, Jennifer Spies, and the two started dating.
In the fall of 1982, Kathleen Smith was a bridesmaid at the wedding of Robert Ortloff's sister, Mary. Kathleen had broken up with her high-school boyfriend, and her mother later said Ortloff sent flowers to Arizona and called Kathleen frequently after the wedding.
"She did date Robert," Carol Smith said in a 1985 interview with an investigator.
But Ortloff also continued to date Jennifer Spies, and when Hughes Aircraft transferred his father to Tucson in early 1983, Spies moved over with the Ortloffs.
She and Ortloff broke up later that year. Ortloff moved back up to Tempe in late 1983 with plans to manage the flower shop that his parents were planning to open.
Though Ortloff's romance with Kathleen Smith had "just kind of fizzled out," according to her mother, he continued to do chores at Carol Smith's home for some extra money.
By then, Kathleen was living at the SceneOne Condominiums, in a two-bedroom unit listed in her mother's name.
Fiesta Flowers opened for business in late 1983.
Jennifer Spies reconciled with Ortloff months later and joined him in Tempe. The pair lived in a home on West Cornell Drive with Ortloff's brother, Michael, about 10 minutes from the flower shop.
Next to the new store was a Subway restaurant that Rick Schibler had opened with his then-wife Judy in 1983 — the chain's first franchise in Arizona.
Schibler also took on the responsibility for finding potential franchisees around the state, which he still does.
Ortloff approached Schibler about opening his own Subway. Schibler later said he'd rejected the idea because Ortloff was "a little immature" and didn't seem to have the necessary capital.
But that changed when Kathleen Smith came into the picture in February 1984. That month, Ortloff and Kathleen met with David Smith at his home in Pinetop.
Carol Smith later told a private investigator on tape that Kathleen "really didn't want to do business with her father because, quite frankly, she didn't trust him."
But the young woman desperately needed David Smith's financial help in getting the venture kick-started.
At that meeting, Ortloff promised to cover the initial $7,500 Subway franchise fee. In turn, Smith agreed to co-sign a $50,000 line of credit with First Interstate (with $35,000 immediately available for withdrawal) to cover the extensive start-up costs.
Ortloff borrowed the $7,500 from his paternal grandfather, Anthony, in late February. (The theft by Ortloff of another $7,500 from Anthony came later.)
ROKS was incorporated with the state of Arizona in March 1984, with Kathleen listed as president, Ortloff as secretary, and David Smith as a director.
That month, Ortloff and Kathleen went to Connecticut for a seminar on how to operate a Subway shop
Kathleen and Ortloff had identified what they thought would be a perfect site for their restaurant, at Dobson and Broadway.
But, according to Ortloff, Carol Smith, and others, Rick Schibler convinced them that a new strip mall at University and Country Club in Mesa would be far better.
Kathleen later learned that Schibler snatched up their preferred site — the one he'd pooh-poohed — for a member of his own family. Kathleen told her mother that she had confronted Schibler about the deception.
"She was more than annoyed, yes," Carol Smith said in 1985. "She felt that the people at [Subway] corporate headquarters should know how [Schibler] was acting."
She said she didn't know if Kathleen ever contacted Subway, but was certain the daughter would have gotten in Schibler's face about it.
Carol Smith also said Kathleen and Schibler had "spent some time looking for locations and also had dinner on several occasions."
Donna Lowe, a close friend of Kathleen's, said in 1985, "Rick had made a few advances toward Kathleen, and Kathleen kind of turned them down. I had one conversation with Rick the whole time Kathleen was getting in the Subway business.
"I said, 'I'm a friend of Kathleen's. How you doing?' And he goes, 'Oh, you're a friend of that bitch' . . . And he goes, 'I'm only joking, I'm only joking.' That kind of took me off-guard when he said that."
That allegedly happened a few weeks before Kathleen was murdered.
Rick Schibler negotiated the lease for the ROKS Subway in Mesa, with a target opening date of October 1, 1984.
In August 1984, Kathleen Smith met with a New England Life agent about buying $25,000 each in "key man" insurance policies on her and Robert Ortloff's life.
It works like individual life insurance, in that when an insured dies, the policy pays out a benefit. But instead of an individual insuring him or herself or a family member, the business owns the policy and pays the premium, $37.15 monthly in this instance.
New England Life approved the key-man policies, which went into effect in September 1984.
Even the Smiths later conceded that the policies had been a boilerplate business move. But the family and police long have suspected that a $100,000 life insurance policy Ortloff took out on Kathleen's life in late August was part of his motive for murder.
Kathleen signed a State Farm policy, which listed Ortloff as sole beneficiary. He had no such reciprocal insurance policy on his life with Kathleen as beneficiary.
"She just thought it was really unnecessary," Carol Smith said of Kathleen's attitude about the additional coverage.
But Ortloff's mother, Claire, told police that Kathleen had wanted the larger policy to ensure that if something happened to her, Ortloff would have enough money to keep the business out of her father's hands.
State Farm issued the $100,000 policy in Kathleen Smith's name on September 13, 1984, three weeks before the murder.
Robert Ortloff and girlfriend Jennifer Spies were working at the flower shop as he sorted out how he'd find time to run two businesses, Fiesta Flowers and the new Subway.
That May, Ortloff had repaid his grandfather the $7,500 he had borrowed from the older man for the Subway franchise fee. The repayment came via a check written on the ROKS account and signed by Kathleen Smith.
But within a few weeks, Ortloff stole a check from his grandfather, forged the older man's signature and cashed it. It, too, was for $7,500.
"Although I could have asked my parents, Carol Smith, Kathleen, or my girlfriend Jennifer's father for a loan, I did not and foolishly wrote a check," Ortloff wrote to New Times in 2006, the only time he's admitted anything that could be construed as criminal wrongdoing.
"My grandfather learned of this and was naturally upset and disappointed. Kathleen was upset that I hadn't asked someone for a loan . . . She gave me a company check and told me if I needed to pay my grandfather immediately, just do it. She only told me to tell her if/when I wrote it."
Ortloff insists he did tell Kathleen about wanting to pay Anthony back with ROKS funds for the theft, and that she covered for him with her father shortly before she died by simply saying they needed more money to open the restaurant.
David Smith said later he had agreed to free up more money through the line of credit but would do so only after studying the ROKS bank statements.
That would have posed a problem because of the glaring $7,000 ROKS check signed by Robert Ortloff on October 1. It was made out to his father, William, who passed it along to Anthony).
Prosecutor Levy will attempt to prove that, contrary to Ortloff's explanation, Kathleen knew nothing about the $7,000 check Ortloff had written. He will allege that Kathleen had just learned that the ROKS account had plunged to less than $1,000, which had thrown her for a loop.
The money crunch for Ortloff and Kathleen shortly before her murder was palpable.
The pair had learned that unforeseen and expensive plumbing problems were cursing their new site in Mesa, the one Rick Schibler had picked for them.
The anticipated October 1 opening of their Subway restaurant would come and go.
Kathleen Smith's friend, Donna Lowe, said in 1985 that Kathleen asked her on October 3, 1984, for a $4,000 loan to tide things over.
Lowe said she didn't have the money. She described her friend's mood as "real down, but not desperate."
That night, Lowe met Kathleen at Rustler's Rooste, a Western-style steakhouse on Phoenix's South Mountain. Also present were Robert Ortloff, Jennifer Spies, and Sam Caley Jr.
Lowe has said that Kathleen told her privately that night about having lost a ROKS checkbook. Worse yet, Kathleen allegedly stated that $8,000 in the ROKS account was unaccounted for.
Lowe says she asked Kathleen whether she'd suspected Robert Ortloff of stealing the money. Kathleen said no.
Kathleen left that night with Caley. The others stayed awhile, and Lowe shared a few dances with Robert Ortloff, the man she later came to believe murdered her friend.
October 4, 1984, would be Kathleen Smith's last full day of life.
Early that evening, she went to her mother's home in Tempe, where Caley was living. Carol Smith said later that Kathleen's mood had been dark, mostly over the troubles plaguing the Subway franchise and the depletion of the ROKS account.
But Caley told detectives after the murder that he believed Kathleen had been most stressed about her personal account. He recalled that she'd told him it was overdrawn by $1,100. Actually, she had all of 69 cents in that account when she died.
Kathleen and Caley left together in her car for the condo. Caley later told police that Kathleen had performed oral sex on him before they went to sleep, but that they hadn't had intercourse because she was menstruating.
That would only become important in light of the "moderate amount" of seminal fluid (along with a tampon) discovered in Kathleen Smith's vagina during her autopsy.
A pathologist estimated that the semen had been in Kathleen for 15-18 hours, which couldn't have been right because she'd been dead for 21 hours by then.
Last year, defense attorney Patterson asked retired Tempe detective Hal McCormick whether police had tried to compare the semen with that of any suspect.
"I believe they did it by blood type and stuff like that," McCormick replied, "and it didn't match anybody in this case that we had submitted blood [to the Arizona Department of Public Safety] on. It basically excluded them, I guess you can say."
The three names that the now-retired detective recalled were Robert Ortloff, Rick Schibler, and Kathleen's boyfriend, Sam Caley Jr. But McCormick's memory may be faulty on this critical issue.
No police reports exist to suggest that blood ever was drawn from Ortloff or Schibler, and Caley was equivocal in a recent interview about whether he had given a sample. Caley told detectives in an earlier interview that he hadn't had sexual intercourse with Kathleen for several days.
So, as the Ortloff trial begins, the vital questions of who deposited the semen and when remain unanswered.
Kathleen dropped Caley off at her mother's home about 7 the next morning. Carol Smith told police that she'd heard Caley come in and go to his room.
Kathleen then drove to Mesa Community College to take an hour-long psychology test (her professor confirmed her attendance). She was supposed to go from there to work and then, according to her mother and others, to First Interstate for a scheduled appointment with her banker.
But no one at the bank, including the manager, ever confirmed to police that Kathleen had an appointment on October 5, 1984, or on any other day.
As for Ortloff's whereabouts on October 4, then-girlfriend Jennifer Spies consistently has said that they spent a quiet night with his brother Michael watching television at home after going out to dinner.
"Everything just seemed normal," Spies told a prosecutor in 1985. "Nothing stands out in my mind."
Little would be normal for Ortloff on October 5, 1984, the day someone murdered Kathleen Smith.
For months afterward, Jennifer Spies stuck to her original account of Ortloff's whereabouts when she awoke about 10 a.m. on October 5.
She said he'd been with her at home and then they'd left for work at the flower shop in separate cars.
That seemed to provide Robert Ortloff with a nice alibi, whatever the police or the Smith family believed about his guilt.
But Spies was lying.
In truth, she had no idea when she awoke where Ortloff was and how long he'd been gone.
Her lie may have started innocently enough. Ortloff's mother had surprised her with a phone call wondering why she and Robert weren't at Fiesta Flowers getting ready to open for business at 10 a.m.
Claire Ortloff had driven up from Tucson that morning on a whim, but no one was at the store. Spies said later she'd covered for her boyfriend so that his mother wouldn't get on him for being tardy.
Spies told her that Ortloff already was on his way and that she'd be right behind him.
Skipping her shower, Spies drove to Fiesta Flowers, later estimating that it was about 10:15 a.m. when she arrived. Within minutes after saying hello to Claire, she walked across Southern to a nearby bank to deposit money.
When she returned to the store, Robert already had shown up.
"I seem to remember just a feeling that he was clean," Spies told a prosecutor months later, just as she was about to leave Ortloff and return to California for good. "His normal work clothes are very casual, but he was groomed."
By casual, Spies said she meant khakis and a polo shirt.
Rick Schibler's daughter, Robin, was working next door at the Subway shop and said she'd first seen Robert Ortloff at "approximately 10:30 to 10:35 a.m.," a police report states.
The timing is crucial: The Tempe Fire Department was dispatched to Kathleen Smith's condo at 10:42 a.m., just a few minutes, according to arson investigators, after the residence would have gone up in flames.
Remember, Ina Weisbaum and her granddaughter had seen a guy in red shorts and a T-shirt fleeing from the area of Kathleen's condo.
How could Ortloff have found the time to change, cool down after a brawl with Kathleen — in which he'd sustained visible injuries — and gotten to his job even by 11, clean-shaven and neatly dressed?
Prosecution witness Fred Tokars will testify that Ortloff told him of creating a delayed, wick-type fuse to give himself up to an hour to get out of the condo and over to work before it ignited.
According to Jennifer Spies, sometime before noon, Ortloff helped her load a bulky helium tank into her car for a drive to Phoenix.
To this day, Spies — who testified against Ortloff in the 1986 mail-bomb case — has been steadfast: She stood next to Ortloff at the flower shop as he loaded the tank, and didn't noticed any cuts or bruises on his neck. Nor did she see him limping with a foot injury of any kind.
"And you would have [noticed the injuries]?" a prosecutor asked Spies at a secret meeting in June 1985.
"Oh, yeah," she replied.
Spies said it was only after she returned to the shop with the refilled helium tank in the early afternoon that she "saw the injury to his neck and that he was limping."
They were not insignificant injuries. Police later noted a six-inch scratch and three smaller abrasions across Ortloff's neck.
Kevin Corrado, a former friend of Ortloff, told police that he showed up at the shop sometime before 12:30 p.m. and that Ortloff did not seem injured "in any way."
Ortloff's account of his whereabouts before he showed up at the flower shop that morning has been consistent.
A few weeks ago, he wrote to New Times, "I awoke around 8:45 a.m. to work on the damaged rear fender of my car. Jennifer was still asleep. My brother Michael was in his room. My first attempts proved futile. Using the tire as a leverage point, the fender would move outward a little but spring back afterward.
"I did not have anything heavy enough [or] the room to pound the offending lip back. So I took off to my [other] brother's house, which was less than a mile south of my home. He had all the neat tools."
Ortloff claims he worked on the car for a while longer and then drove it home.
"Pulling into my driveway, I must have just missed Jennifer," he wrote. "I took a quick shower, shaved, and rushed off to the shop, where I arrived around 10:20 a.m. Robin Schibler saw me at the back of the shop around this time.
"Michael told the police that he was awakened, probably by the sun shining through his uncovered window. He looked out, seeing me working on the car. He thought I was changing a tire. He also heard me taking a shower before I left for work."
Curiously, neither the prosecution nor the defense has listed Michael Ortloff as a witness at his brother's trial.
Robert Ortloff says he cut and scraped himself after Robin Schibler rushed over from the Subway shop about 12:30 p.m. with the terrible news of a fire and a body at Kathleen's condo.
He says he had retreated, in a daze, to the back of the flower shop and stepped up on a ladder to get something. But he slipped and grabbed a shelf for support as he fell. It disengaged and cut his neck.
As for the broken toe, Ortloff says he kicked a wall or cabinet in anger and frustration at learning that Kathleen might be dead.
Kevin Corrado later told police that he went outside for a moment after word came of the tragedy.
According to a Tempe police report, "when Mr. Corrado returned, Robert told him that a shelf had fallen on him, scratching his neck. Mr. Corrado stated at that point he observed the scratches and bruises on Mr. Ortloff's neck. Mr. Ortloff also kicked a wooden partition while Mr. Corrado was in the flower shop, injuring his foot."
Interestingly, Subway's Rick Schibler — whose own morning activities would raise still-nagging questions — later told a detective, "I heard [Ortloff] kick the wall [from the Subway next door]. I don't know if that's how he injured his foot, but I heard him kick the wall."
Schibler also told detectives in his first, unrecorded interview after the murder that he'd arrived at his Mill Avenue Subway store between 9:30 and 10 a.m. An employee of his showed up about 10.
"Between 10, 10:30, I cut my finger," he repeated in a taped follow-up interview on October 17, 1984. "Went to the emergency room. I guess I got there maybe between 10:30 and 11. It was bleeding pretty bad, the cut."
In her interview, the employee concurred that Schibler had come out of the back of the restaurant with his hand wrapped in a towel between 10 and 10:15 a.m. and later drove himself to nearby Tempe St. Luke's Hospital.
Hospital officials said later that Schibler checked himself in at 11:15 a.m., was stitched up, and was discharged around 12:30 p.m.
Detectives never did search that Subway for signs of blood, and it's unclear in the police reports whether the employee actually saw blood or Schibler's cut.
They also didn't ask Schibler what he had done for about an hour with a badly cut hand before driving himself to the hospital.
(Ortloff's defense team interviewed the former Subway employee a few months ago. She claimed no recollection of that seemingly memorable day.)
Schibler told police that he learned about the situation at Kathleen's early that afternoon, and drove to the condos after leaving the hospital with his stitched-up finger.
There, he saw Ortloff's mother. Robert Ortloff had stayed back at the flower shop, which is curious in itself.
Schibler drove Claire Ortloff back to Fiesta Flowers. He spoke briefly with Ortloff, whom he described as "pretty upset."
About 4 p.m. that day, two police detectives spoke briefly with Ortloff at the flower shop. They noted the deep marks on his neck in their reports, which suggested to them "that [he] was possibly in an accident or a fight."
Ortloff agreed to come down to the police station for an extensive interview, which he did a few hours later.
Detectives there advised Ortloff of his Miranda right against self-incrimination, after which he told them (according to a police report) he had written a check on the ROKS account (he said it was $6,800, not $7,000) to repay money he'd "borrowed" from his father (not stolen from his grandfather).
He also noted that Kathleen apparently had lost her ROKS checkbook a few days earlier.
The police took photos of Ortloff, including shots of his scratched neck and badly swollen right big toe — which turned out to be broken — and then let him leave.
Kathleen Smith's autopsy took place the following morning, October 6.
Dr. Thomas Jarvis, the county's medical examiner, determined that she died of thermal burns, which meant she had been alive when her killer torched her.
But assistant county medical examiner Dan Davis looked into the case in 2006 and came to a profoundly different conclusion.
Davis said the lack of soot or carbon monoxide in Kathleen's lungs indicated to him that she wasn't breathing when the fire started. He also said the blow to Kathleen's head probably didn't kill her, but he couldn't say for sure how she died.
"She could have been unconscious, then suffocated, and then there was an effort to disguise this with a fire," Davis told defense attorney Patterson. "She could have been strangled. There's any number of ways she could have been killed without the fire killing her, but I don't think the fire killed her."
Davis made things even more topsy-turvy by suggesting that Kathleen may have died more than an hour before her body was set afire about 10:40 a.m.
He based that on crime-scene photos of Kathleen's back, which show the presence of livor mortis, the maroon color that appears after a person's heart stops and no longer churns the blood.
Medical journals say livor mortis never should be used as the sole means of establishing how long someone has been dead. Unlike what might be discerned from television's CSI, there's no way to say exactly when someone died unless you happen to be there.
That said, according to a respected medical text, livor mortis is "usually noticeable about an hour after death and is often apparent earlier, within 20 to 30 minutes."
Davis' conclusions open up many possible scenarios concerning Kathleen's murder and its aftermath.
For example, assume Kathleen was murdered an hour before the fire started and her killer, at first, didn't have the gasoline with him (or her) inside the condo. He could have left, put gas in the Clorox bottle, sneaked back in, lit the fire to try to destroy evidence, and then fled as the flames quickly took hold.
But if the killer did have the gas with him when he entered Unit 110 — which obviously suggests premeditation — why would he have stayed with the body even for a minute, much less longer than that, before igniting the fire and hightailing it?
The ROKS Subway project seemed a distant memory as 1984 drew to a close.
Kathleen Smith was dead, Robert Ortloff didn't have any money to speak of, and David Smith had terminated (and paid off) the line of credit.
Ortloff's attempts to collect the $125,000 on Kathleen's life met with ongoing roadblocks in the form of insurance company investigations and lawsuits filed by the Smiths.
In January 1985, a customer at Rick Schibler's Subway shop on Mill Avenue found an unexploded homemade bomb inside the store. Tempe police called in the FBI to assist with its investigation.
Again, Ortloff was a prime suspect, though police never interviewed him about it. But they did speak with Schibler, who claimed Ortloff had been causing problems for him.
Schibler told detectives he had been trying to sell the Mill Avenue store, "because of financial problems partially caused by a recent divorce settlement."
When they returned a few days later to ask Schibler more questions, he refused to be interviewed further.
No one ever was charged with the attempted bombing of the Subway. But a private investigator hired by David Smith to get dirt on Robert Ortloff later wrote in a report, "The police apparently feel that Rick Schibler was losing a considerable amount of money in his Subway shop. Schibler is suspected to have placed the bomb himself to burn the place for the insurance."
That was not what Smith wanted to hear, and it wasn't accurate: Ortloff, according to police reports generated in 1985 and beyond, was the chief suspect in the Subway case.
But county prosecutors weren't close to seeking an indictment against Ortloff in that case or for allegedly murdering Kathleen Smith.
That was crushing news to the Smith family, especially their powerful patriarch, David, who had been relentless from day one in his quest to bring Ortloff to justice, whatever it took.
Frustrated by the lack of "progress" by the Tempe cops toward that end, David Smith hired private investigator John Lyon and told him what he thought about Ortloff.
"It was just a matter of hours before I knew that the son of a bitch did it," he told the investigator on tape in February 1985, speaking of the murder of his daughter. "I just got that instinct."
Smith was determined to get Ortloff.
"If you've got to pay somebody, pay them, I don't care," he told Lyon at a meeting, referring to bribing police or civilians for information.
"I want this son of a bitch convicted, okay, before I have to kill him. And I don't ever want to be put in that position . . . As far as the cops are concerned, you don't have to pay them nearly as much, you know. I'm sure that you can get cops for $1,000, $2,000, whatever is required."
One of the attorneys at that meeting pointed out that there was "nothing to tie Ortloff to it at this point, other than motive and opportunity."
Undaunted, Smith told everyone what he thought had happened at the condo.
"I think that she broke his toe," he said. "I think that she bruised his ribs, and I think she beat the shit out of him."
Over the next months, David Smith hired a public-relations firm and held press conferences to keep his daughter's murder fresh in people's minds and paid for billboards adorned with Kathleen's image to be placed around the Valley.
The billboards reminded everyone that a $50,000 award awaited anyone who provided information leading to the arrest and conviction of his daughter's killer.
Meanwhile, John Lyon kept meticulous notes as he went about his business. He and his team tailed Ortloff, Jennifer Spies and others everywhere, rummaged through Ortloff's garbage, and spoke to dozens of potential witnesses, seeking anything with which to propel the investigation forward.
Months later, Spies said Ortloff had been frightened enough of David Smith that he began carrying a gun with him wherever he went.
Spies stayed with her boyfriend despite the continued heat on him from Smith and Tempe police.
In early 1985, she borrowed $9,000 from her father and turned over the money (with the father's knowledge) to Ortloff.
Ortloff says he still wanted to try to reinvigorate the Subway venture, and planned to repay that debt after he collected the life-insurance money still pending from Kathleen's policies.
But none of it happened. The ROKS Subway project was kaput, and Ortloff never did collect a penny of the life-insurance proceeds. And he never did repay the $9,000 loan from Jennifer's father, Gary.
In April 1985, John Lyon met with Gary Spies in Southern California.
Afterward, Lyon said on tape that he'd alerted Jennifer's dad that "if it's a fact that Robert killed that woman, and if it's a fact that Jennifer knows it, and if it's a fact that Jennifer becomes a threat to him, her life ain't worth a plugged nickel, okay?"
Robert Ortloff asked Jennifer Spies to marry him around Memorial Day 1985, and she said yes.
In early June, they took out life-insurance policies on each other (Ortloff listed Spies as sole beneficiary of a $100,000 policy on himself, and vice versa). Spies also took out an additional $50,000 policy, naming her father as a 25 percent beneficiary and Ortloff as 75 percent.
The very next day, Tempe detectives drove to Fiesta Flowers in an unmarked car, where Spies still was working with her new fiancé.
They asked her to speak with them in the car, where they informed her they knew about the newly inked life-insurance policies. They equated those policies to those Ortloff had taken out on Kathleen Smith shortly before the murder, all but telling her that she could be his next victim.
The next morning, the detectives called Spies at the shop and, she said later, told her she was in immediate danger. She drove Ortloff's car to the Tempe station and learned that her father had hired bigtime Phoenix criminal-defense lawyer Tom Henze to represent her.
That night, the authorities put up Spies at a hotel, and a meeting was arranged for the following day at Henze's office with members of the County Attorney's Office.
On June 7, 1985, Spies took questions from a deputy county attorney after he promised her immunity from prosecution in the case.
For the first time, Spies admitted she'd been lying about Ortloff's whereabouts when she'd awakened on the morning of Kathleen's murder.
But Spies swore she had been truthful about everything else, including that she hadn't at first seen the scratches on Ortloff's neck. She reiterated that Robert never had made any incriminating statements to her.
"I don't believe that he did anything wrong," Spies told the disappointed authorities at the secret session.
Later that day, Spies returned to California, leaving her personal belongings behind. Her father came to Tempe a week later to pick them up from Ortloff.
The wedding was off.
On September 26, 1985, Tempe police sent their findings to the County Attorney's Office and asked that murder charges be filed against Robert Ortloff.
But prosecutors declined to take the case to a grand jury.
Ortloff continued to toil at Fiesta Flowers for the rest of 1985. He dated other young women, including Anna Carpenter, who had replaced Spies as an employee at Fiesta.
She would have a huge role in the next chapter of Ortloff's legal saga, but that's getting ahead of the story.
On January 31, 1986, federal authorities arrested Robert Ortloff on charges of attempting to murder soldier Thad Gulczynski with a mail bomb he'd allegedly sent from Fiesta Flowers to Fort Hood, Texas.
The motive in that case? Gulczynski allegedly had stolen Carpenter's affections from Ortloff.
Ortloff has been in custody since that day.
As for Rick Schibler, the former murder suspect, life after Kathleen Smith's death got much better, financially speaking.
With Schibler still at the helm, Subway now has more than 300 franchises in Arizona, and he resides in a multimillion-dollar Scottsdale home abutting a golf course.
Schibler would have remained a footnote in an unsolved cold case had it not been for Fred Tokars coming forward in 1999 with a wild tale about enticing a murder confession out of fellow prisoner Ortloff.
Just last year, someone uncovered a memo in the files of Robert Ortloff's former civil attorney, R. Kelly Hocker, and sent it to Ortloff.
The document, the legitimacy of which has been confirmed by Hocker's former secretary, was dated May 2, 1985, around the time Tempe police were about to make their assault on Jennifer Spies.
"From a confidential source, it was learned that Kathleen was having an affair [with] Rick Schibler," the memo said.
"Apparently, it had been going on for several weeks prior to her death. Around the same time, Kathleen found out that Rick had been responsible for taking the space that she and Robert had located" and that Schibler had signed the lease notwithstanding the huge plumbing problems.
"Apparently, Kathleen was very, very angry over hearing these things . . . and this may have prompted a number of actions which included and ranged from confronting him, socking him, cussing him, threatening him, or all of the above."
Who that "confidential source" was — Ortloff says it wasn't him or one of his family members — surely will remain a question mark. Kelly Hocker died years ago.
In the end, what isn't a question mark is that telltale footprint in the condo flowerbed — the size 9 1/2 or 10 print that isn't anywhere near big enough to be Robert Ortloff's size 13.
Last October 16, defense attorney Patterson finally got to interview Rick Schibler, who brought his own attorney with him to the County Attorney's Office for the session.
It was one day shy of 23 years since Tempe police had asked Schibler how he'd known about the blow to Kathleen's head before it had become public information.
During the session, Patterson asked Schibler, "What size of shoe did you wear back then in 1984?"
"Nine-and-a-half, nine," Schibler replied.
"Okay, all right," Patterson deadpanned.
To be sure, Patterson will be posing that question again to Schibler at Robert Ortloff's trial.
OCTOBER 5, 1984 (all times but the 10:42 call are approximate)
7 a.m. Kathleen Smith drops off her boyfriend at her mother's home in Tempe, then attends a class at Mesa Community College.
9:50 a.m. Robert Ortloff's mother calls his home from Fiesta Flowers. Jennifer Spies answers, lies about Ortloff's whereabouts, and says he is on his way to work. Actually, she doesn't know where he is.
10–10:30 a.m. Richard Schibler claims to have gashed a finger in his Subway store on 10th Street and Mill Avenue.
10:40 a.m. Two eyewitnesses see a man fleeing from the direction of Kathleen Smith's condo. The man leaves a perfect footprint in a flowerbed a few yards from the condo's front door.
10:42 a.m. Tempe Fire Department dispatches two engines to SceneOne Condominiums.
10:30–11 a.m. Witnesses see Robert Ortloff at Fiesta Flowers, about 10 minutes from the Kathleen Smith crime scene. No one notes any sign of injuries to Ortloff.
11:15 a.m. Richard Schibler checks himself into Tempe St. Luke's Hospital to receive stitches for his cut left ring finger.
Early afternoon Ortloff and others are informed at Fiesta Flowers about the fire at Kathleen Smith's condo and the discovery of a body inside. Ortloff claims to have injured himself sometime afterward in the back of his shop.
4 p.m. Tempe police speak with Ortloff for the first time and notice the scratches to his neck and that he is limping (broken toe).
BIG PICTURE TIMELINE
February 1984 Robert Ortloff and Kathleen Smith start ROKS Incorporated hoping to become Subway restaurant franchisees.
June 1984 Ortloff embezzles $7,500 from his grandfather.
October 1, 1984 Ortloff repays grandfather with ROKS business funds.
October 5, 1984 Kathleen Smith is murdered.
January 1985 Someone puts a homemade bomb in a Subway owned by key Smith murder case figure Rick Schibler.
June 1985 Ortloff's live-in girlfriend, Jennifer Spies, gives immunity-protected statement to prosecutors, then abruptly leaves Arizona for California. Does not implicate Ortloff directly in murder.
September 1985 The Maricopa County Attorney's Office declines Tempe PD request to seek murder indictment against Ortloff.
November 1985 Tempe PD and FBI meet in strategy session about Ortloff and the two cases (murder and attempted bombing) in which he is the prime suspect.
January 1986 Ortloff is arrested in the mail-bombing of U.S. Army Specialist Thad Gulzcynski at Fort Hood, Texas.
June 1986 A federal jury in Waco, Texas, votes 10-2 to acquit Ortloff of all mail-bomb charges. The judge orders a mistrial.
August 1986 Ortloff is convicted of all mail-bomb charges, and later is sentenced to 50 years in prison.
March 1993 The Office of the Inspector General releases its findings on a major scandal inside the FBI crime lab. One of those excoriated is bomb expert Tom Thurman, a key witness at Ortloff's 1986 trials.
January 1999 Ex-prosecutor-turned-murderer Fred Tokars is transferred to a federal prison in Wisconsin, where Ortloff is serving time.
March 1999 A friend of Tokars tells members of Kathleen Smith's family that Ortloff has confessed to Tokars that he murdered the young woman.
April 1999 Ortloff is not granted parole and is told he will have to wait 15 more years for reconsideration.
July 1999 Tokars tells a Tempe police detective that Ortloff confessed to him.
May 2003 Ortloff is indicted on first-degree murder and other charges by a Maricopa County grand jury.
February 2008 Ortloff's murder trial in the courtroom of Judge Warren Granville begins.
Next week: How Robert Ortloff landed in prison and later met infamous jailhouse snitch Fred Tokars, who conned cops into believing that Ortloff confessed to murdering Kathleen Smith.
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