Bombshell: The explosive backstory in the Robert Ortloff murder trial may be more fascinating than the case itself

Tokars said Ortloff had been so open with him because "people look at me as being a smart lawyer who is now in prison for life, who's never ratted on anybody, who's basically a stand-up guy and is wealthy and smart, and so he wanted me helping him."

Ortloff tells New Times that he met Tokars in early February 1999, later in the timeline.

"It was no secret that I was fighting the FBI and the officials at the Justice Department," he wrote last year in a letter. "It also was no secret that I wanted to find an advocate who would take on the FBI and expose the true extent of the misconduct as my own legal efforts were ignored."

Ortloff says Tokars began to discuss his own case and how NBC's Dateline had picked up his story through an attorney he knew, Alan Bell.

"The guy was said to be semi-retired and now looking for a big case for the publicity," Ortloff wrote, referring to Bell. "Knowing that I was battling the very top of the system, Tokars mentioned that the attorney would have an advantage as he used to work for Janet Reno and could go to the top with my case."

Ortloff said he was given an address for Bell in Capistrano Beach, California. As he had done many times before over the years, Ortloff says, he sought the pro bono services of a licensed barrister by sending Bell a cover letter and a packet of materials that summarized his legal saga.

The packet included Ortloff's take on how he allegedly had become looped into the 1986 mail-bombing case by David Smith and a litany of details about Kathleen's still-unsolved murder.

(Alan Bell claimed in a 2006 defense interview that he never received anything from Ortloff.)

Ortloff had boxes of legal files in his cell at Oxford and also worked on his cases in the law library or a unit card room, where inmates hung out during the day.

Pretrial interviews with prison officials suggest that Tokars or any other inmate could have gotten into Ortloff's legal materials for the four months or so they were incarcerated in close proximity.

Ortloff contends Tokars accessed, copied, or outright stole paperwork that provided a detailed roadmap of his legal issues, including police reports from the then-dormant Smith murder case and related documents.

Tokars denies it all and is expected to testify at Ortloff's murder trial in the next few weeks that a desperate Ortloff had begged for his legal assistance on the new habeas and on the parole.

But it appears more likely that Ortloff didn't particularly need Tokars' legal help in early 1999.

Ortloff already had asked a federal court to allow him to file the new habeas petition. His parole-hearing documents also were good to go.

He also still was trying to get the FBI task force created in the aftermath of the crime-lab scandal to seriously investigate the Fort Hood bombing investigation.

Ortloff says he wanted an advocate from the outside, not the likes of Tokars, as deviously brilliant as the disbarred Georgia attorney has proved himself to be.

On the afternoon of March 26, according to notes later provided to Maricopa County authorities, Kathleen Smith's twin older brothers met with Tokars' pal Alan Bell at his Tucson home.

Bell had enticed the Smiths by saying that an imprisoned "client" had garnered a confession from Robert Ortloff about murdering Kathleen back in 1984.

According to the Smiths' typed notes, Fred Tokars was seeking favors in return for his testimony against Ortloff.

"Tokars would like to cooperate in the arrest and conviction of Robert Ortloff for the murder of Kathleen Smith," one of the Smith brothers wrote.

"However, he wants to enter the federal witness-protection program. He would like to be given a new name and transferred to a country-club prison in exchange for his cooperation. He would eventually like to have the possibility of regaining his freedom."

Bell's account in a 2006 defense interview was markedly different than the Smiths'. He recalled only that he had phoned a Smith family member and also "called the police department at the same time. I think just the victim's family responded sooner than the police department did."

But Tempe police records show that Bell didn't contact the Tempe police until about three months after his meeting with the Smith brothers.

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Just days after Alan Bell met with the Smiths, Robert Ortloff learned that an appellate court had denied his request to file another habeas petition.

Then, on April 12, 1999, the Parole Commission informed Ortloff in writing that he wasn't going to be released and would have to wait another 15 years, until April 2014, before reapplying.

"I was very down because the average sentence for my type of conviction was less than what I'd already served," Ortloff tells New Times. "I knew I was getting screwed every which way. But as far as telling Fred Tokars the, quote, truth about killing Kathleen, so he would help me in my time of need, is complete, utter bullshit."

In early May, authorities at Oxford learned that inmates had been discussing an upcoming Dateline episode on the Tokars murder case. That information originated from Tokars, who was overheard by other inmates discussing his case on the phone.

At the time, according to prison documents, Tokars also was snitching on a Mafia-connected inmate from Chicago, and was "maintaining written notes regarding this inmate's case. It is quite likely that this inmate has discovered these notes."

Prison officials decided to move Tokars out of the general population for his own safety. That May 10, a supervisor spoke with Tokars about piles of legal materials belonging to other inmates who were in his cell.

According to a memo composed by Lieutenant David Shy, Tokars said he was working with authorities on at least four matters: the Iowa murder case of Dustin Honken, a mysterious case "involving President Clinton," something with the Chicago mobster, and the Ortloff case.

But prison records show that Tokars had files concerning a dozen Oxford inmates. What he was doing with paperwork and how he had obtained it remains a mystery.

Shy wrote that Tokars said he wanted to destroy his files on his fellow inmates that "could be potentially damaging to me." Remarkably, according to prison records, he was allowed to do so, personally shredding hundreds of pages in Shy's office.

Fred Tokars never returned to the general population at Oxford. Later that summer, he was transferred to another medium-security prison, in Sheridan, Oregon.

But before he left Wisconsin, Tokars would take part in a momentous three-way phone call with a Tempe cold-case detective and the ubiquitous Alan Bell.

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It's easy to see how veteran Detective Tom Magazzini was lured into believing Fred Tokars' wild yarn.

What is more difficult to fathom is how experienced prosecutors at the Maricopa County Attorney's Office later bit.

Nearly three months after his meeting with the Smith brothers in Tucson, Alan Bell arranged a taped call between Detective Magazzini and Fred Tokars.

With Bell listening in, Tokars spun a tale that would be the basis years later for a murder indictment against Robert Ortloff.

Tokars said Ortloff first had told him about his mail-bombing conviction and how he'd allegedly been framed:

"I said, 'God, if all these things that you're saying are true, you really were set up by the government,'" Tokas told the cop. "I said to him, 'Why would the government lie and cheat to convict an innocent person?' I mean, it's possible that that happens, but if they did do it, there has to be a reason."

Tokars first said Ortloff had showed him part of a court petition in which Ortloff "was challenging some information in his pre-sentence report. In there, they outlined the Kathy Smith murder. And they had some basic tidbits of information and references to it."

Tokars claimed he'd told Ortloff that "if you want me to handle your case or help you handle a case, you're gonna have to tell me everything."

He said Ortloff got a "last rejection" at the end of March on one of his petitions, which had sent his new confidant into a tailspin:

"I said, 'Look, if you really want to win this thing, you're gonna have to explain to them why [the government] did this to you. Because no judge is going to believe that the prosecutor and the FBI [are] going to convict an innocent person.'"

Detective Magazzini didn't know it, but Ortloff had been doing exactly that for years, in losing petition after petition.

It makes little sense that Ortloff would have confessed to Tokars about anything, especially before March 26, 1999, the date of Bell's exploratory meeting with Kathleen Smith's brothers.

At that time, Ortloff hadn't yet received the "last rejection" of his habeas petition, nor had he been shot down for parole.

"All the information that you would have is directly from Robert Ortloff. Is that correct?" the detective went on.

"That's correct."

"And what did Ortloff tell you about this specific crime?"

Alan Bell interrupted Tokars before he could reply — a deal had yet to be struck — and instructed him not to get into details; "just the bottom line."

Tokars then said how he'd told Ortloff that documents he'd seen on the Smith murder suggest "there's a lot of evidence here to show that you were involved. You had the motive. You had the opportunity. And I'm not going to help you work on this [habeas] petition unless you're honest with me."

That's when Ortloff allegedly decided to come clean.

"He finally admitted that, 'Yes, I was involved, but it was an accident,'" Tokars said. "'I didn't mean to do it. And I had to cover it up.'"

Tokars said Ortloff subsequently gave him "bits and pieces" of information about Smith's murder over the next month and showed him a police report about the 1984 case.

"Did he give a reason why he killed her?" the detective asked.

"Jealousy and money," Tokars replied. "And once she found out that he stole money from the business, she was gonna turn him in to her father and the police, and they were gonna criminally prosecute him. Are you familiar with this?"

"I'm very familiar," Magazzini said.

With increasing detail, Tokars described how Ortloff and Kathleen Smith had gotten into a big argument at her home on the morning of October 5, 1984, "and basically [she] was gonna throw him out, and so they just got into a fight and he hit her over the head. Then he said that he left and went and got the gasoline and came back and basically disposed of the body by burning it."

In another discussion some days later, Tokars claimed, Ortloff said he "actually planned on doing it. I guess he had gloves and he also took rope with him, and his plans initially were to strangle her, but it didn't happen that way."

Ortloff allegedly told him that being busted for stealing money from the ROKS Subway business account was going to cost him everything, and that "he just couldn't control his emotions, the built-up jealousies over the years of having Kathleen having everything and him not being able to have stuff."

"Did he advise what he used to burn?" the detective asked.

"He used gasoline," Tokars said, adding that in Ortloff's amended account he had described bringing the gas with him into the condo.

"And he made a wick out of toilet paper, which, according to him, would last anywhere from five to 20 minutes, depending on the strength of the gas he was using." In a second interview, Tokars would expand the alleged wick's time span to up to an hour.

(Tempe fire inspectors later would say that the wick theory, while technically plausible, would have allowed Kathleen's assailant no more than a minute or so to get out of the ignited condo, not an hour or anything close to that.)

The reason for the wick, Tokars continued, was "that no matter what happens, he was back at the flower shop by 10:30, 10:40, when the murder allegedly occurred, or at least when the fire started, if you will."

Tokars volunteered, "I can tell you he went there wearing athletic clothing, like athletic shoes, shorts, and a T-shirt because he said a lot of university students lived there and he wanted to blend in."

This was a very important comment.

Remember that Lisa Pickett and her grandmother Ina Weisbaum described a man fleeing from Kathleen's condo wearing exactly that outfit. Unfortunately for prosecutors, it turns out that the sneaker print that the mystery man left in a wet flowerbed in front of the pair was about four sizes smaller than Ortloff's size-13 foot.

Tokars said he'd be willing to take a polygraph test, and that all he was seeking was "protection" from Ortloff and other inmates.

"Hey, Tom, are you interested in pursuing this?" Tokars asked at the end of his first performance with the detective.

"Oh, yes," Magazzini replied. "Very much so."

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The transcript of Fred Tokars' 2004 testimony against murder defendant Dustin Honken in the Iowa case is strikingly similar to the story he told Detective Magazzini and soon will be telling at Robert Ortloff's trial:

In both cases, Tokars says he's not looking for any breaks or special deals from the government. Like Ortloff, Honken confronts him about being a former prosecutor and judge, and threatens to spread that news among other inmates if he doesn't help with legal matters.

Tokars initially begins to work on one case for Honken/Ortloff but reluctantly is drawn into discussing their unsolved murder cases. Over time, he confronts Honken/Ortloff with inconsistencies in their stories. He is frightened of where this might lead, but Alan Bell urges him to play along. He reads only small portions of legal documents provided by the men.

Honken/Ortloff's original plan had been to strangle their victim with a rope, but instead ended up bashing him/her over the head with a blunt object.

It was almost note-for-note.

On July 22, 1999, three weeks after Magazzini spoke with Tokars, Robert Ortloff wrote to the U.S. attorney in Wisconsin that someone had "rifled through legal files in my possession."

Ortloff said he was missing documents that showed how the Smith family and Tempe police "were working in concert to falsely link me to a murder and how that [unsolved murder case] is interwoven with my federal conviction."

Without mentioning Fred Tokars by name, he described how "an ex-lawyer and judge gave me the name of an attorney to contact," and that Ortloff had sent that lawyer (Alan Bell) documents "which echoed most of my civil rights statement, which was stolen."

Perhaps, Ortloff knew he was in a pickle because he had confeessed to Tokars — who no longer was in the general population at Oxford — and he had to document his "concern" about the missing documents.

Or maybe he's telling the truth.

On October 26, 1999, Tom Magaz­zini went to the Sheridan Federal Prison Camp in Oregon, where Tokars had been transferred.

During two days of interviews, Tokars' recollection of what Ortloff allegedly had told him was exhaustive and offered a glimpse into how the Atlanta man had laundered millions of dollars in complex offshore accounts collected through the sales of cocaine and other drugs.

Tokars claimed that Ortloff "doesn't think there's a chance that [the Smith murder case] could ever resurface, and he said the cops are dumb."

He added more details to the "confession," saying Ortloff also had admitted to putting the bomb in Rick Schibler's Subway shop.

Tokars said Ortloff always denied that he'd been guilty of the Fort Hood mail-bombing, which supposedly was the reason the two men had started "working together."

Tokars now claimed he'd "never seen any reports," referring to the Tempe police reports on Kathleen Smith's murder.

He claimed he'd decided to come forward after he learned that Ortloff had been talking on the prison phone about him. In the same breath, he alleged that Ortloff had been speaking about breaking out of prison with a remote-controlled helicopter to be provided by members of a South American drug cartel whom he knew.

"I said, 'I don't want to break out of prison. Leave me alone,'" Tokars said.

Tokars then handed Detective Magazzini 88 pages of notes in Ortloff's handwriting "that he made after he had admitted to me that he did this. There's no admissions in here, but there are things that are relevant."

Tokars said Ortloff had given him the notes to help with new legal papers that Tokars was supposed to compose for him.

Actually, they were photocopies of notes replicating the detailed "statement of facts" that Ortloff had attached to court pleadings over the years, including the most recent habeas filing on January 21, 1999.

Ortloff points out, "Why would I need Tokars' assistance to write out a chronology that I already had perfected? Those notes are one of many drafts of my chronology that were all over my files. He stole those notes for study purposes, and I didn't even know it until later."

Tokars described Ortloff to the detective "as being evil. He doesn't really care about anyone other than himself. He thinks he's smarter than everyone else. He thinks other people are expendable when it comes to him."

To those familiar with Fred Tokars' own infamous story, it sounded as though he were describing himself.

Tokars said he would be "surprised if there were other people that Ortloff had told about [the murder]."

Magazzini didn't ask Tokars about the pair of condo eyewitnesses whom the likely killer almost had run into outside Kathleen Smith's condo.

If Ortloff were going to tell all, he surely would have told Tokars about that close call.

Tokars summarized the legal work he was supposed to have done for Ortloff in one sentence: "We were working on it."

But he wasn't. He had done nothing for Ortloff.

In Oregon, a polygraph examiner from the Tempe Police Department asked Tokars a series of questions designed to see whether the snitch was telling the truth.

The examiner said the results were "inconclusive," which Magazzini later suggested might have been because of various medications Tokars was taking.

Magazzini returned to Tempe with one hell of a yarn and the case of a career. Time passed.

Then, in March 2003, then-Maricopa County Attorney Rick Romley wrote to federal officials that his office was prepared to indict Robert Ortloff "due, in large part, to the anticipated cooperation and trial testimony of federal inmate Fredric Tokars."

Around that time, Fred Tokars was accepted into the witness-protection program. No one will confirm where he is housed, or whether he is in prison at all.

On May 14, 2003, a Maricopa County grand jury indicted Robert Ortloff in the murder of Kathleen Smith, but not before one of the jurors asked Detective Magazzini a question about Tokars:

"What credibility can you really place on a person that has [themself] in that predicament [and] used to be a judge and a lawyer?"

Prosecutor Noel Levy wouldn't allow the detective to answer, saying that "normally, a [trial] jury determines credibility, not you."

Now, going on five years after that indictment, Fred Tokars finally will tell his story to a 12-person jury sitting in the courtroom of Judge Warren Granville.

That moment, especially the cross-examination of Tokars by Ortloff attorney Dan Patterson, promises to be as dramatic as it gets.

If the jury believes Tokars, Ortloff will spend the rest of his life behind bars.

If it doesn't, Ortloff walks.

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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, Kathleen's residence.

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).

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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 begins in the courtroom of Judge Warren Granville.