By Paul Rubin
Robert Ortloff, who recently was convicted of killing 20-year-old Kathleen Smith at her Tempe condo back in 1984, has been a rather accomplished jailhouse lawyer since his incarceration in 1986 in an unrelated case (sending a mail bomb to a U.S. Army soldier based in Texas).
But, for now, he's relying on real-life attorneys to try to win him a new trial, an effort that promises to be an uphill struggle at best. In a motion to Superior Court trial Judge Warren Granville filed last week, Ortloff's counsel accuses prosecutor Noel Levy of serious "misconduct" during the three-month-long case, which ended with the former Tempe resident's conviction. Ortloff faces what in effect will be a life sentence after Granville (almost surely) rejects the request for a new trial at a hearing scheduled for later this week.
Then it will be up to an appellate court to examine the myriad issues surrounding the fascinating case, not the least of which is Ortloff's contention that "four witnesses materially changed their testimony relative to the shoeprint."
Attorney Alan Tavassoli correctly points out in his brief that only two developments in the nine years before Ortloff's conviction were significant: The appearance of the infamous Fred Tokars, a murderer from Georgia who became a government snitch against Ortloff. And the conclusions of prosecution expert witness Dr. John DiMaggio about shoeprint evidence uncovered near Kathleen's condo at the time of the murder.
For several years, authorities had been convinced that Ortloff left the shoeprint behind while fleeing from the condo after bludgeoning his victim and then setting her on fire. But Dr. DiMaggio concluded that Ortloff's shoe size was three or four sizes larger than the telltale print. Just as troublesome for prosecutor Levy were the statements in 1984 and afterward of two eyewitnesses--a then-14-year-old girl and her grandmother--who claimed to have seen a man running from the direction of Kathleen's condo through a flowerbed, where he had left a pristine print.
"Dr. DiMaggio's opinion necessarily compelled [Levy] to distance himself from the shoeprint," Ortloff's attorney wrote. "However, he also had to preserve the believablity of his informant [Tokars] who claimed Mr. Ortloff had worn red shorts and had been seen [outside] Ms. Smith's condo. Further, he had to salvge the identification testimony of Ms. Pickett relating to the photograph of Robert Ortloff."
According to the Ortloff camp: "Faced with this shoeprint evidence dilemma, the prosecutor orchestrated material changes in witness testimony bearing upon the shoeprint at trial. Four key witnesses altered their testimony at trial. None of the material changes were delineated by the prosecutor in his opening statement thus taking the defense by surprise."
Easily the most important of those four witnesses was Lisa (Pickett) Steedman, the neighbor of Kathleen Smith who had pointed out the footprint to Tempe police with her late grandmother so long ago. Steedman's new account from the witness stand was startling, in that she now said she never actually had seen anyone step into the flowerbed, but made up the story (and stuck to it for nearly a quarter-century) to appease her overbearing mother (who had appeared at the scene sometime after the police had gotten there).
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"[We] submit that [Steedman] was vulnerable to the prosecution plan in that she must have read the New Times article designating her testimony concerning the man seen exiting Kathleen Smith's condominium and her assertion that that man made a shoe impression in the flowerbed as critical evidence exculpating Robert Ortloff.
"The plain truth unaltered for 24 years was that the man who killed Kathleen Smith was seen running from her condominium by Lisa Steedman and [her grandmother] and was observed by them to have stepped in the flowerbed leaving a clearly defined shoeprint. That shoeprint and others made by that man that day were significant items of evidence to law enforcement and the prosecution until Dr. DiMaggio opined that they could not have been made by Robert Ortloff."
Ortloff's attorneys are asking Judge Granville to "evaluate all prosecutorial misconduct within the context and strength of this case. The state's case was predicated solely upon the testimony of a government informant who admittedly had access to police reports and pleadings filed by [Ortloff] that recited the facts of the Kathleen Smith homicide. The state's case was entirely circumstantial and constructed of evidence that focused on Ortloff's purported motives to kill Kathleen Smith."
Again, the odds of Granville granting a new trial are slim. But the issues raised in the defense memorandum are as real as the shackles that will keep Robert Ortloff right where he is when the judge hears oral arguments on the motion later this week.