Alan Bell is a well known attorney to myself and other colleagues of mine. He has a sterling reputation as an ethical and dedicated lawyer. His many accomplishments are impressive. He is also a distinguished philanthropist.
By Monica Alonzo
By Ray Stern
By New Times Staff
By Stephen Lemons
By Chris Parker
By Monica Alonzo
By Stephen Lemons
By Robrt L. Pela
One of the suspects was a restaurant executive with whom Smith had both a business and personal relationship, though it remains unclear how personal it ever was. The other suspect — who quickly became the prime suspect — was Robert Ortloff, then 24 and the manager of his parents' flower store at 48th Street and Southern Avenue.
Ortloff and Smith had recently entered into a business partnership, with designs on opening one of the first Subway restaurant franchises in Arizona. But financial troubles plagued the project from early on, and were exacerbated shortly before Kathleen's murder when Ortloff withdrew $7,500 from the pair's business account (with or without her knowledge, depending on whom you ask) to repay money he'd recently stolen from his paternal grandfather.
Less than a week later, Smith was bludgeoned with a blunt object inside her condo, Unit 110. Her killer then poured gasoline on and around her body, ignited it and fled, shortly before the residence burst into flames. Two eyewitnesses saw the man police believe was the killer moments after he left Unit 110. The pair — a woman and her 14-year-old granddaughter — showed authorities a pristine footprint that the fleeing man had left in a wet flowerbed just a few yards from the front door of Unit 110.
In conclusion, Part One revealed that Ortloff wears a size-13 shoe, but the print in the flowerbed was a 9 1/2 or 10.
This week, Part Two describes how Ortloff found himself sentenced to 50 years in prison in 1986 for another crime, and how infamous Georgia criminal Fred Tokars came forward in 1999, claiming that Ortloff had confessed to him about killing Kathleen Smith.
Rubin contacted Robert Ortloff by mail shortly after a Maricopa County grand jury indicted the former Tempe resident for first-degree murder in May 2003. Ortloff responded with the first of literally hundreds of letters — most of them pages long — about the various permutations of his legal saga, now almost a quarter-century old.
Before writing this two-part story about Ortloff and the Kathleen Smith murder case, Rubin reviewed thousands of pages of court files, police reports generated by several agencies, documents obtained through the federal Freedom of Information Act and other materials. He read the entire transcripts of Ortloff's two Texas trials on the Fort Hood mail-bombing case that is a centerpiece of Part Two, as well as transcripts of testimonies given by Fred Tokars at one of his own criminal trials in Georgia and as a government witness in an Iowa murder case in 2004.
Testimony in Ortloff's murder trial was expected to start on Thursday, February 14, in Maricopa County Superior Court.
Guilty or innocent, Ortloff himself put it best in a letter to Rubin.
"If you analyze everything about my cases, and I mean everything, you'll have yourself one amazing story, whether you end up liking me or not."
Thad Gulczynski, a 20-year-old soldier from Mesa, walked from his barracks to fetch his mail.
It was a Saturday morning — January 11, 1986 — at Fort Hood, Texas.
Carpenter had been dating Ortloff as well as working for him, but she had taken a fancy to Gulczynski during the soldier's recent Christmas leave back home.
Carpenter later would say she'd told Ortloff around New Year's Day that she wanted to slow down her relationship with him.
Then she had put together a care package for Gulczynski at Fiesta Flowers that included a bottle of rum, a teddy bear, and three letters. Carpenter stuffed the box with newspaper and other wrapping material from the flower shop, and sent it via UPS from Mesa.
A second package also awaited Specialist Gulczynski that morning at the mail pickup. It was a cardboard box addressed to him in handwritten block lettering. The return address on the box was Gulczynski's.
He returned to his room with both boxes, sat on his bed, and opened the second one first.
It exploded, as two pipe bombs inside propelled hundreds of nails in every direction. Some stuck in Gulczynski's legs, and he suffered cuts and minor burns but somehow escaped serious or permanent injury.
Other soldiers came to his aid, soon followed by military police and agents from the Army's Criminal Investigation Command (CID).
As medical personnel attended to the injured soldier, CID agents blew up the second package — the one from Carpenter — inside a shower stall at a nearby latrine in the event that it, too, contained a bomb.
Within a few days, they sent the evidence to the FBI laboratory in Washington, D.C.
Gulczynski said he didn't know who would have tried to blow him up.
But he did mention the name Robert Ortloff, who apparently had expressed dismay to Anna Carpenter over the soldier's budding romance with the young woman.
Gulczynski said he'd met Ortloff only once, an uneventful and brief contact a few weeks earlier in Mesa.
Tempe police knew very well who Ortloff was. Though the case officially remained unsolved, detectives were convinced that Ortloff had bludgeoned 20-year-old Kathleen Smith and then lit her on fire at her West University Drive condo on October 5, 1984 ("If the Shoe Don't Fit . . . You Must Acquit," Paul Rubin, February 7).
That wasn't the only reason to question Ortloff on the mail-bombing.
The FBI and the Bureau of Alcohol, Tobacco and Firearms had assisted the Tempe cops in investigating the January 1985 case of an unexploded homemade bomb at a Subway on Tenth Street and Mill Avenue. That restaurant was owned by Rick Schibler, with whom Ortloff had a contentious relationship.
But prosecutors had been unwilling to go forward because of the lack of evidence against Ortloff in both the murder and Subway cases.
On January 12, 1986, FBI agents interviewed Ortloff in Tempe. He denied having had anything to do with the Fort Hood mail-bombing.
The feds already had learned that someone had mailed the bomb to Texas from a post office about six miles east of Ortloff's flower shop, located at 48th Street and Southern Avenue.
A postal clerk recalled the transaction, but what she told the agents about the sender, and the fact that they'd even interviewed her, remained under wraps for years.
Three days later, an FBI fingerprint examiner concluded that one of Ortloff's fingerprints and a palm print had been on debris collected from Gulczynski's room after the explosion.
The FBI arrested Robert Ortloff at his flower shop on January 31, 1986.
A federal magistrate ordered him held without bond, and he was extradited to Texas to face attempted murder and other charges.
During their search of Ortloff's home, the feds located a document that excited the Tempe cops when they learned of it. It was a checkbook for ROKS Incorporated, the partnership that Ortloff and Kathleen Smith had formed in early 1984 to open a Subway franchise.
Smith had lost a ROKS checkbook just before her murder, and police long had speculated Ortloff had stolen it to repay $7,500 that he'd embezzled from his grandfather.
A Tempe lieutenant told reporters that an indictment in Smith's murder finally might be at hand.
But the local cops learned it wasn't the missing checkbook after all but a new checkbook Ortloff had ordered after Smith's death.
The Smith case returned to the back burner.
The mail-bombing was another story.
Robert Ortloff's family hired two well-known Waco lawyers to represent him.
The fingerprint and palm print seemed damning, and an FBI agent also was prepared to testify that tool marks lifted from wires on the bomb matched up with pliers confiscated from Ortloff's home.
The trial began in June 1986.
Members of Kathleen Smith's family attended every day, as did Robert Ortloff's parents.
Prosecutors claimed that Ortloff's motive had been jealousy, pure and simple.
But Anna Carpenter testified that it hadn't been that serious between her and Ortloff, which didn't bolster the government's theory.
An important witness for the prosecution was FBI explosives expert James "Tom" Thurman, a soft-spoken Kentuckian with a résumé that already included an investigation of the 1983 suicide bombing of the Marine barracks in Lebanon.
He testified that Ortloff's fingerprints definitely had come from the box in which the mail bomb had been sent, not the one Anna Carpenter had packaged at Fiesta Flowers, where the defendant's prints reasonably could have been.
But 10 of the 12 jurors were not swayed by the government's case against Ortloff.
On June 17, 1986, federal judge Walter Smith ordered a mistrial.
The retrial took place within weeks.
Shortly before the first trial, a jailbird named Michael Parker had told authorities that Ortloff tried to hire him to kill Anna Carpenter and her brother Michael in Mesa after Parker's imminent release.
By way of proof, inmate Parker turned over a map that he said Ortloff had drawn for him. The map gave directions to the Carpenter home.
Parker asked authorities for lenient treatment on a probation violation charge in return for his testimony. But prosecutors chose not to call him at Ortloff's first trial.
However, after the near-acquittal, the feds decided to use Parker, who agreed to testify even though he already had been freed.
Parker testified that Ortloff offered him $2,250 to execute one of two plans.
He was to place a homemade bomb inside a storage room at the Carpenters' Mesa residence, then tip police to make it seem that someone there knew his or her way around explosives.
Plan B was more depraved.
Michael Parker would go to Arizona and kill Anna Carpenter, then kidnap her younger brother Michael. Parker then was to force Michael Carpenter to write a phony murder-suicide note in which Michael would "admit" to being both the Fort Hood bomber and his sister's killer.
Parker then was to murder the young man in such a way that it would look like a suicide.
Four prosecution witnesses testified at the retrial that Ortloff had told them about knowing how to make a pipe bomb. The witnesses included former fiancée Jennifer Spies and Anna Carpenter Gulczynski.
Ten days after the first trial ended in the hung jury, Anna married the soldier.
During her second round of testimony, Anna claimed that the handwriting on the outside of the bomb package was Ortloff's, something FBI experts hadn't been able to state with certainty.
And, according to Anna's new testimony, her relationship with Ortloff had been so serious that he had "talked about marriage."
Thad Gulczynski, who now is an FBI agent, told New Times in a 2005 e-mail that he "didn't have much of an impression [of Ortloff] because I only saw him for five minutes, if that. Nothing stuck out at that time for me to have an opinion either way . . . I know he wanted a better relationship with her, and she said no, she was with me. One way to deal with that would be to get me out of the picture. Didn't work."
(Gulczynski and Carpenter divorced years ago.)
Ortloff's defense at the retrial was ineffective.
His attorneys sought no forensic experts to try to counter the powerful testimony of the FBI experts, whose cloak of infallibility dominated the courtroom.
The sum of the defense was to put Robert Ortloff on the stand and hope for the best.
They got the worst.
Ortloff said he and Anna had been dating several times a week before the mail-bombing, though he also claimed he found time to see other women.
Ortloff insisted he'd never been "in" love with Anna.
He admitted he had drawn the map, "hoping to have somebody who wasn't from Mesa, Arizona, find out about [Anna's brother] Michael Carpenter."
"Find out what?"
"Whatever he could."
Ortloff said he never gave Parker the map, and that the snitch probably had gotten it by going through his legal papers at the jail. He swore that he never engaged in conspiratorial talk with anyone about killing Anna and Michael Carpenter.
Under cross-examination, Ortloff conceded that his relationship with Anna Carpenter had been "serious" and it had been her idea, not his, to cool things down shortly before the Fort Hood bombing.
"Were you jealous of Thad?" the prosecutor asked.
"Yeah, a little bit," Ortloff said. "I'm not jealous in being upset with Thad as much as being upset with the situation."
Ortloff didn't contest the devastating FBI testimony that his fingerprints were on the bomb package, which led the prosecutor, an Army lawyer, to comment, "That leaves one a conclusion that the bomb packaging — the box and the packaging — came from your Fiesta Flowers shop in that you had handled the box and packaging in some manner prior to it being mailed. Is that fair?"
"It had to be, yeah," Ortloff answered.
"So you don't contest the fact that the bomb mailed to Thad Gulcyznski at one time or another, the actual packaging was handled by you?" the prosecutor asked.
"That would be the only explanation."
Inevitably, Ortloff faced (and still does, more than two decades later) the looming question:
Who mailed the bomb to the soldier if not him?
"I've been locked up for six months," Ortloff replied at the trial, "and don't have the ability to find out like you people."
On August 15, 1986, that jury found Ortloff guilty.
Shortly after Ortloff's conviction, Tempe police asked the Maricopa County Attorney's Office to charge him with Kathleen Smith's murder.
But on October 1, 1986, a homicide prosecutor advised the cops, "There was inadequate evidence of participation, no reasonable likelihood of conviction, intent, or participation on the part of Robert Ortloff."
A probation officer wrote to the judge before the October 3, 1986, sentencing that Ortloff "believes [Kathleen Smith's father] David Smith is responsible for setting him up, and had the bomb sent to have Ortloff incarcerated."
That must have sounded wacky.
But the officer didn't know (nor, yet, did Ortloff) that David Smith had instructed a private investigator in February 1985 to bribe police or anyone else, with the ultimate goal of getting Ortloff prosecuted for murdering his daughter.
"I want this son of a bitch convicted, okay, before I have to kill him," Smith had said on tape to the investigator and others.
Also before sentencing, Tempe police sent a synopsis of their investigations of Kathleen Smith's murder and the attempted Subway bombing to the court, noting that Ortloff was "the prime suspect" in each.
Judge Walter Smith (no relation to Kathleen Smith) imposed the maximum sentence of 50 years, with no possibility of parole until at least 1999, 13 years down the road.
Ortloff was shipped off to a federal penitentiary in east Texas.
His legal saga was only just beginning.
In 1987, Ortloff's attorneys lost the appeal of his mail-bombing conviction with the Fifth Circuit Court of Appeals after making what appears to have been a meager effort.
Ortloff started to visit the prison law library in Texarkana with great frequency, and sought transcripts of both of his trials, but he wouldn't get them for years.
He filed dozens of federal Freedom of Information Act requests about his case, though responses were slow in coming, if at all.
Ortloff waited. He had nothing but time.
In August 1987, a newly elected U.S. senator from Arizona named John McCain wrote on behalf of Kathleen Smith's family to the federal Parole Commission. McCain wanted to know when Ortloff would be eligible for parole.
The commission advised the senator that it didn't even have a file yet on Ortloff because he wouldn't even be considered for parole until 1999.
That October, the Smith family filed a wrongful-death civil lawsuit against Ortloff in Maricopa County.
The Smiths prevailed when Ortloff failed to appear in court — the guy was in prison, after all — and a judge ordered him to pay $400,000 in damages (with interest, that sum now is more than $1 million).
Though Robert Ortloff wasn't about to be freed anytime soon, authorities in Arizona hadn't forgotten the Kathleen Smith murder case.
In early 1988, someone from the FBI's Phoenix office sent a memo to FBI Dallas stating:
"FBI Phoenix has a police cooperation case in which Tempe PD considers Robert Ortloff a prime suspect in the murder of his business partner Kathleen Smith. Will direct all informants toward Ortloff in an effort to ascertain any information of the subjects involved in the murder of Kathleen Smith."
By the end of the 1980s, Robert Ortloff's Freedom of Information requests started to trickle into his prison mailbox.
One was a highly censored FBI report about the Phoenix postal clerk who had handled the Fort Hood bomb package in January 1986.
Though names had been blacked out, the report showed that an FBI agent and a postal inspector had spoken to the clerk shortly after the bombing and she had recalled the transaction with a white or Hispanic man.
The feds later handed the clerk a photo lineup that included Ortloff's picture, but she didn't pick out their suspect in the bombing.
Some in the FBI wanted to compel Ortloff to attend a live lineup, but that never happened.
Instead, the government hid the existence of the postal clerk — who could have helped Ortloff's quest for a "reasonable doubt" verdict in his favor — until well after the conviction.
Ortloff also received redacted government paperwork that hinted how FBI explosives expert Tom Thurman might have wrongfully concluded that Ortloff's prints had come from the bomb package.
The paperwork included previously undisclosed statements of medical personnel at the Fort Hood bombing who had noted yellow tissue paper strewn about Specialist Gulczynski's room.
The import was, the government maintained that Anna Carpenter had filled her harmless package — the one that authorities blew up in the latrine — with yellow paper, and that the exploded bomb box in Gulczynski's room was stuffed with brown paper.
The FBI crime lab apparently hadn't analyzed the yellow paper for fingerprints or anything else before destroying it.
By 1992, Ortloff's evolving "theory" in his legal pleadings was that materials from the bomb package had been mixed in with Carpenter's benign package (where his fingerprints definitely could have been, since she'd put it together at his flower shop).
His more malevolent hypothesis was that the government had deliberately engaged in a bait-and-switch of the two sets of packing materials to fabricate evidence against him.
In May 1993, Ortloff submitted a "2255 habeas corpus" petition with trial judge Walter Smith (the number refers to the federal statute), asking for reconsideration of his case based on newly discovered evidence and on other grounds.
Federal prisoners frequently file such petitions, but their success rate is exceedingly low.
Judge Smith quickly dismissed the petition, citing the "overwhelming evidence" against Ortloff, and an appellate court upheld the judge in December 1994.
At the time, the notion of a convicted mail-bomber winning a legal battle against the FBI crime lab and its highly respected and agent Tom Thurman seemed absurd.
By 1996, Thurman's reputation had grown to almost mythic proportions, and he had been promoted to chief of the FBI's Explosives Unit and Bomb Data Center.
That July, a story in the New York Daily News about Thurman began, "He is the feds' secret weapon in the battle for answers to the crash of TWA Flight 800."
An assistant FBI director said of Thurman in that story, "I want the best guy we have and he is the best guy we have."
But all the accolades ended the following January, when national headlines broke news of a long-brewing scandal inside the FBI crime lab.
Senior explosives expert turned whistleblower Dr. Frederic Whitehurst claimed that lab examiners, including Thurman, had doctored reports, fabricated testimony, and handled evidence sloppily in cases that included the 1993 bombing of the World Trade Center and the bombing of the Oklahoma City federal building.
One FBI agent wrote of Thurman in an internal memo, "It is clear that [he] does not understand the scientific issues involved with the interpretation and significance of explosives and explosives residue composition . . . Thurman committed errors which were clearly intentional. He acted irresponsibly. He should be held accountable."
The Justice Department's inspector general later issued a 517-page report that confirmed Whitehurst's allegations of substandard analyses, testimonial "errors" and generally poor practices at the lab.
Thurman soon retired from the agency, became a college professor and, in a second act that may be described as ironic, authored a well-received book in 2006 titled Practical Bomb Scene Investigation.
As for Thurman's work in the Fort Hood mail-bombing case, a 1997 FBI task force later concluded that all evidence had been destroyed. That seemingly made any real investigation into Thurman's pivotal work in that decade-old case impossible.
Ortloff continued to file his Freedom of Information requests and his lawsuits against the government.
He worked endlessly at the prison library on his so-called "chronology of facts" of the myriad events (the uncharged Kathleen Smith case, the FBI crime lab, and so on) that he alleged had wrongfully landed him behind bars.
As 1999 began, Ortloff continued to prepare hard for a parole hearing slated for sometime that year.
On April 10, 1994, a detailed story in the New York Times reported that "a prominent Atlanta lawyer has been convicted of arranging the murder of his wife, who was shot to death in front of the couple's two young sons as part of a cocaine and money-laundering conspiracy.
"The lawyer, Fredric Tokars, a former prosecutor and part-time judge, was convicted on Friday of eight federal charges, including racketeering, kidnapping, money laundering and using the phone to set up a murder."
Tokars, then 40, still faced a state murder charge, where prosecutors would seek the death penalty.
In Atlanta, Sara Tokars' murder had been a huge story ever since it occurred just after Thanksgiving 1992.
Mrs. Tokars and her sons, 4 and 6, were kidnapped from their suburban home. An intruder forced them into the mother's car and ordered her to drive down the street. There, he shot her in the head from close range and fled into the night.
The 6-year-old reached around his mother's bloody body to stop the vehicle and ran with his little brother to a neighbor's home for help.
Suspicions about Tokars soon arose. Police learned that Sara was about to seek a divorce and had asked a private detective to turn over his findings of her husband's various criminal enterprises and adulterous activities to authorities if anything happened to her.
Also, Tokars had taken out $1.7 million in insurance on Sara's life, with himself as sole beneficiary.
Within weeks, police arrested a Tokars business associate and another man on charges of murdering Sara and announced that Tokars also was a murder suspect.
The feds arrested Tokars in August 1993.
"Wife Dead, Husband Indicted, Atlanta Is Transfixed," a headline in the New York Times read.
In his closing argument at Tokars' federal trial the following year, a prosecutor told the jury, "You know what a hypocrite is? A hypocrite is a wolf in sheep's clothing. A hypocrite is a human being who portrays to be something good when they are really bad . . . And that is the case for Fred Tokars."
After the jury convicted Tokars, a judge sentenced him to four life sentences in a federal prison.
In March 1997, another jury in the state of Georgia's case against Tokars decided to spare his life after convicting him of murdering Sara.
During the sentencing phase, one of Tokars' oldest friends, Alan Bell, made an impassioned plea for mercy. Bell was a former prosecutor who split his time between Tucson and Capistrano Beach, California.
Bell would become a central figure in the new legal machinations that later would envelop Robert Ortloff.
By the late 1990s, records show that federal inmate Tokars already had offered his services to the government as what prosecutors like to term "a cooperating witness."
Others call them snitches, and they are everywhere inside penal institutions. In exchange for "information" about other inmates, government informants often are transferred into nicer prisons or receive other benefits.
In 1998, Tokars came forward with information on fellow inmate Dustin Honken, serving a 27-year sentence in a Colorado Supermax prison on a drug-distribution conviction.
Tokars and another inmate separately told authorities that Honken had confessed to the unsolved 1993 murders in Iowa of three adults and two children.
Prosecutors later secured Tokars' placement in the federal witness-protection program. Tokars and many other inmates testified against Honken at the 2004 trial, which ended in convictions and a death sentence.
But not everyone was enamored of Fred Tokars.
"Regarding his personality structure," a prison psychiatrist wrote of him in 1998, "it seems apparent that he has been dealt many narcissistic blows. He has a long history of manipulating and coercing people. He did not talk about his crimes at all, and he does not seem to have any remorse for his crimes."
On January 5, 1999, the feds transferred Fred Tokars from Colorado to the medium-security Oxford, Wisconsin, prison where Robert Ortloff had been housed for a few years.
It was a busy time for Ortloff, legally speaking.
He was putting the finishing touches on yet another attempt at a habeas petition ("newly discovered evidence"), though he says he was aware it would be an uphill struggle to win the day.
Ortloff also was working on his parole hearing set for that April.
That July 2, Fred Tokars would tell a Tempe police detective by phone that Ortloff had confessed to him about murdering Kathleen Smith back in 1984.
He said he'd first met Ortloff in mid- to late January, with the confession coming a few months after that.
"Over a period of, like, three months," he told Tom Magazzini, "[Ortloff] asked me to help him work on his habeas corpus case and a couple of other legal matters. As he failed more on his court petitions, and as he became more desperate, he opened up to me and started to confide in me."
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.
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.
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.
"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."
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.
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).
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.
Alan Bell is a well known attorney to myself and other colleagues of mine. He has a sterling reputation as an ethical and dedicated lawyer. His many accomplishments are impressive. He is also a distinguished philanthropist.
I'll always love you Fred. Call me. Remember who you are and that all good intentions get twisted in this day and age.
Fred Tokars is an honest man with a lot of personal integrity. Those closest to him, and there are many, know him to be a true friend, patient, gracious, and forgiving. I will always love this true friend and miss him forever.
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