The Best American Crime Reporting 2009 (21 page)

L
INDBERG IS A MESS OF CONTRADICTIONS.
He’s a white supremacist who has also described himself as “half Apache Indian.” (“Stay White,” he liked to write to friends.) He has claimed to believe in Christianity, but simultaneously espoused a satanic view of life. (“You must kill to learn on your way to learning infanate [sic] wisdom knowledge from beyoned [sic] the grave,” he advised in a handwritten instruction manual.) He has declared his hatred of Asians, but his best friend, a cousin, was half-Japanese.

“Gooks and Nips…sound like a bunch of mice talking, like a fast-forward cassette,” he told fellow inmates inside the Orange County Jail, where he violently attacked two Vietnamese inmates while awaiting trial for killing Ly.

Predictably, Lindberg’s background was, according to a court-ordered psychiatric analysis obtained by the
Weekly,
“tumultuous and dysfunctional.” His mother and grandmother, an expert concluded, “apparently gave Gunner too much love…and covered for him when he got into trouble.”

He never had a steady father figure, either. His biological father, a marine stationed at the old El Toro Marine Corps Air Station, abandoned the family in 1977 after the birth of Lindberg’s younger brother, Jerry. Gunner, born at St. Joseph’s Hospital in Orange, was just two years old. Their mother then dated a series of men, prompting relocations to such places as Riverside, Oceanside, Las Vegas, Missouri and Kansas.

The mother married a marine stationed at Camp Pendleton in 1988. After a reassignment, the family moved to the U.S. military base on Okinawa. The following year, Gunner and several junior-high-school classmates stole a vehicle and sparked a wild, high-speed chase that ended with a collision. Japanese authorities
were not amused. They expelled Gunner from the island. Afterward, he told friends he hated Asians.

Back in the U.S., Lindberg—now living with his grandmother in Oceanside, near San Diego—continued to slide into drugs and crime. He began to get drunk and smoke marijuana at the age of 12. He was cited for an assault a year later.

But the month of October 1990 truly signaled the horrors to come, according to his rap sheet. Then just 15, he chased a day laborer in a strawberry field, called him a “wetback,” and assaulted him with a tree limb for the money in his pocket. The man’s face was so severely cut that it took 19 stitches to sew up, and his arm was broken, with the bone protruding through the skin.

Also that month, Lindberg beat another teenager for a perceived slight and led a knife-drawn home-invasion robbery of 82-year-old Helen Tillman. Not satisfied with just the $50 robbery, he turned around at the front door, returned to the kitchen and slugged his victim in the face. The month ended with an arrest for possession of a controlled substance (methamphetamine).

The Tillman attack won Lindberg a court-ordered trip to Vision Quest, a program in San Diego for juvenile offenders. Reports show he socialized well and excelled at sports, especially running. Was he on the verge of turning his life around?

L
INDBERG ULTIMATELY FAILED
at Vision Quest. Taking orders from adults and living in a structured environment annoyed him; he ran away. When he reappeared in Missouri, he continued
his monstrous ways. He chased an 11-year-old on a bike in a park and shot him in the throat with a BB rifle after the kid said he was a cop’s son. The pellet lodged in the kid’s heart and required surgery. Lindberg attacked another boy, repeatedly kicking him in the ribs, to steal his skateboard. He chased two acquaintances down a highway, firing shotgun blasts at them. He interrupted a high-school beer party by shoving a shotgun under a teenager’s throat and threatening to pull the trigger; he ended up merely walloping the guy in the face with his fist.

During this crime spree, he was in and out of a Missouri juvenile facility and eventually landed in a state prison, where he ran the White Aryan Resistance, plotted the murders of enemies and ambushed a guard. On Halloween 1994, Lindberg began writing Gordon Jack Mohr, a Korean War veteran and right-wing racist who advocated that the enemies of Christ are those “who have mixed blood—the Oriental and Negroid races.” These people, Mohr (now deceased) claimed, are the “real enemies of freedom,” and “they have been trying and will continue to try to destroy the pure bloodline by interbreeding.”

Lindberg was hooked.

“Dear Mr. Mohr, I have received a copy of the
Christian Patriot Crusader,
” he wrote. “And I would like to stress my many thanks for yours and the Lord’s support while I’ve done my time in the Gulag! If it weren’t for you and God’s word I would have gave up a long time ago.”

After his release, Lindberg violated parole, fled Missouri and became a fugitive, according to court records. He landed undetected in Tustin, moved into a two-bedroom apartment with an older man and took a job at Kmart using a fake identity: Jerry Scott Lindberg, the name of his younger brother, who had committed suicide two years earlier on Gunner’s 18th birthday.

Three months later, he and Christopher left Ly’s mutilated, dying body on the tennis courts. Dripping their victim’s blood for several hundred feet, they walked away, excitedly analyzed their
work, tossed the murder weapon down an embankment off Interstate 5, stopped at a Circle K for cigarettes, returned home, stored blood-soaked gloves, smoked more marijuana, played Super Nintendo, and then watched two videos:
The Shining,
a horror movie starring Jack Nicholson as a possessed, ax-wielding psychopath, and Kiefer Sutherland’s
The Lost Boys,
about two young men who battle a group of teenage vampires.

At sunrise the following morning, a Tustin High School groundskeeper driving a golf cart found Ly’s corpse. Police were both disgusted and perplexed. Lindberg, back in the safety of obscurity, felt rejuvenated. To celebrate, he wrote a song, a portion of which goes like this:

There are 669 killers—including “Night Stalker” Richard Ramirez and Scott Peterson—awaiting execution in California. Every person facing the ultimate punishment is afforded an automatic appeal at taxpayer expense. The goal is to ensure that the arrest, trial and conviction were righteous. Ronald F. Turner, the deputy state public defender for Lindberg, is arguing that Lindberg was denied a fair trial. His claims include:

• Evidence of two uncharged robberies Lindberg committed as a juvenile prejudiced the jury against him on the murder charges.
  
• Ronald Miller, a Huntington Beach cop, should not have been allowed to testify as an expert on the relationship between Lindberg and white-supremacist groups, in part because he’d never interviewed the defendant.
  
• Judge Robert Fitzgerald repeatedly shifted the burden of proof to the defense and gave defective jury instructions that allowed the panel majority to pressure several jurors who’d proclaimed “sympathy” for Lindberg and a desire to keep him off death row.
  

But at the June 3 supreme court session in Los Angeles, Turner spent the bulk of his time arguing against the two special circumstances—the commission of an attempted robbery and the commission of a hate crime—that transformed the case from a simple killing to a death-row matter. Both were defective findings, he says.

“The evidence presented at trial was insufficient to prove that Lindberg attempted to rob Mr. Ly,” he said. “Nothing was taken
from the victim, even though Lindberg had the opportunity to take Mr. Ly’s [baseball] cap, his [house] key or his Rollerblades,” said Turner.

Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf reminded the justices that Lindberg had asked Ly at knifepoint, “Do you have a car?”

But to Turner, Lindberg had been “merely posing the question.”

“If Lindberg had any real intent to take a car, he would have stopped and questioned Mr. Ly further,” he said. “Instead, Lindberg repeatedly kicked Mr. Ly in the head, and then stabbed him in the side, back and chest.”

The public defender saved his most strenuous attack on the case for the hate-crime enhancement. He told the justices that the evidence presented at trial “did not establish that Lindberg possessed a racial bias,” did not prove that he hated Asians or “murdered Ly because of his race.”

Turner also said “it tainted the jury to equate Lindberg with Hitler” because his client was not educated and there is no way to know if he understood the meaning of the Nazi SS lightning bolts he drew on letters and displayed in his bedroom.

“When we see murder on a high-school campus, we get angry and we try to make sense of it,” Turner told the court. “The killer was white and the victim was Vietnamese, therefore [people conclude] it must be a hate crime.”

Turner provided an alternative rationale for the crime. It wasn’t white supremacy that dominated Lindberg’s mind but “his fascination with death and with the occult.” His client’s post-murder writings proved, he said, that the killing was the “very first level” in Lindberg’s “dark journey to godhood.”

Associate Justice Carol A. Corrigan interrupted Turner’s presentation to ask, “Are we to ignore all of his [racist] literature?”

Yes, he replied. “We don’t know if he believed it…. Lindberg
was an extremely angry individual who was caught up in ideas of death and destruction, but neither indicated his anger was directed to nonwhites or Asians specifically.”

To bolster his point, the public defender claimed that poor lighting conditions at the high-school tennis courts would have prevented Lindberg from determining the race of the person Rollerblading on the night of the murder. During the trial, the jury considered and dismissed this point. And it didn’t seem to impress Corrigan, either.

She interrupted Turner’s presentation again. This time, her words may have been more of a statement than a question:

“How about this,” Corrigan said. “Was he close enough to tell [Ly was Asian] while he was stabbing him?”

Turner had no good answer.

The supreme court is expected to issue its ruling this summer.

R. S
COTT
M
OXLEY
is senior editor for news and investigations at
OC Weekly,
a Village Voice Media alt-weekly in Orange County, California. He’s won national awards for exposing both a deceitful congressman and a powerful, crooked sheriff. In 2007, he was awarded a top prize by the Los Angeles Press Club for revealing how a convicted felon/ ex-drug addict used the Americans with Disabilities Act to enrich himself. In 2006—the year his coverage of the sensational Haidl Gang Rape case won national attention—his investigation into a carjacking/robbery case proved that police and prosecutors sent the wrong man to prison. In 2005, FBI agents relied on his articles to arrest a wealthy Newport Beach doctor who was charging HIV and AIDS patients as much as nine thousand dollars per shot but injecting them with common saline solution. In 2004, a grand jury used his exclusive work to indict an assistant sheriff on abuse of office charges. In 2001, he helped free a young woman facing the death penalty from jail after proving sheriff’s investigators doctored key crime-scene evidence at a killing. In 2000, he proved that the newly elected district attorney’s best
friend was a longtime organized crime suspect. He lives in Southern California.

Coda

After the article appeared, Gunner Jay Lindberg wrote me a letter from San Quentin State Prison’s death row. He expressed sorrow, writing, “I’ve never denied that I took Mr. Thien Minh Ly’s life—but not for the reasons I was convicted. It was not a robbery nor was it a hate crime. I do believe I should pay for my crimes as I took his life, so I see my punishment as justice. I know if it were someone in my family I’d want justice and no amount of ‘sorry’ would change that. I’m nowhere near perfect, but I’m not a monster. I’ve done a terrible wrong not only to Mr. Ly but his family and I can’t take it back.” So why did he stab Ly twenty-two times? He told me it was merely “reckless actions.”

In August 2007, the California Supreme Court issued a sixty-nine-page ruling that rejected Lindberg’s arguments against his “special circumstances” convictions. The justices wrote “there is substantial evidence” that Ly was murdered during the commission of a robbery and a hate crime.

Lindberg is one of 680 men awaiting lethal injection in San Quentin. He says he spends most of his days creating art and writing pen pals.

Members of Ly’s family continue to live in Southern California but, even after twelve years, still have difficulty discussing events.

FROM
New York magazine

I
T ENDED IN THE POOL.
The whole tragic cartoon.

That morning, it was last Labor Day, Seth and Phyllis Tobias woke up together in the master bedroom of their not-quite-finished dream home. The $5 million, 6,700-square-foot mansion is located in the Bear’s Club, a gated community built on a golf course in Jupiter, Florida, twenty minutes north of Palm Beach. Designed in the style of Addison Mizner, the house is very big and very
faux—faux
Spanish architectural themes,
faux
this and
faux
that. There’s a Ritz-Carlton condo complex in the development, too. Phyllis liked to work out there, get massages, and have her hair blown out.

Seth had bought the house for Phyllis in late 2006 from an upscale Palm Beach broker named Linda Olsson. It was a gesture of reconciliation after the couple had almost divorced. There was a lot of that—reconciliation—but that’s because there was also a lot of fighting. You get the picture. The home included a state-of-the-art office for Tobias, the founder and chief executive of Circle
T, a quarter-billion-dollar Manhattan-based hedge fund. The pool was in the backyard.

The day before, the couple had invited friends over for a barbecue. The party broke up with Seth and Phyllis at each other’s throat. But by the next day, the couple had made up, and now they’d decided to have lunch at the Breakers, the tony Palm Beach resort. At about 5:30
P.M.
Seth and Phyllis left the hotel. Over the course of the afternoon, they’d rung up a $323 bill. Phyllis went home to Jupiter. Seth met up with this guy he’d known since he was a kid, Brett Borgerson. The two of them drove to a bar called E.R. Bradley’s.

Over the next two hours, Seth and Borgerson had a few more rounds. Seth called his wife nineteen times, but she didn’t call him back. It was getting dark, and Seth drove home. He passed through the gates of the Bear’s Club and pulled into their brick driveway.

At 8:08
P.M.,
Tobias texted Borgerson to let him know he’d gotten home safely. Seth and Phyllis had dinner together and then, according to Phyllis, tried to have sex in the pool. They eventually gave up, Phyllis says. Seth was too drunk.

Phyllis went inside and began her nighttime beauty regimen. After a shower, she walked downstairs and squinted through the gloaming. She thought she caught a glimpse of Seth swimming naked in the pool. Then she went back upstairs and got ready for bed. But shortly after midnight, Phyllis called Brett Borgerson’s wife and left a voice-mail that said, “Please call me back, Seth is acting weird. I don’t know if he’s passed out.”

About half an hour later, she called 911. “I don’t know if my husband has passed out or what.” Her accent was thick, New Jersey. The dispatcher asked if her husband was breathing. “I don’t know, he’s turned over!” Phyllis screamed. “Please just send me somebody. He’s outside [in] the pool.” She could then be heard shouting at her floating husband, “Seth, don’t play with me.”

About fifteen minutes later, a Jupiter Police Department squad
car arrived, and two officers shone their flashlights into the pool. The lights eventually settled on Phyllis. She was holding Seth in the shallow end. Paramedics arrived and began CPR. Geysers of water shot out of Seth’s lungs; rigor mortis had already set in. At 1:08
A.M.,
Seth Tobias was pronounced dead. He was 44.

B
EFORE
S
ETH
T
OBIAS WOUND UP DEAD
in his pool; before the accusations surfaced that his wife was a thrice-divorced pill-popper and cocaine user who drugged Seth and killed him for his money; before the claims that Seth had led a secret life in which he drank too much, snorted a boatload of coke, and liked to pick up male hustlers and strippers, including one named Tiger; before Seth’s brothers filed suit in Palm Beach to block Phyllis from getting her hands on Seth’s estimated $25 million estate; and certainly before I found myself face-to-face with the main source of all the dirt—a 300-pound gay con man and Internet psychic with a long criminal history named Billy Ash who claims to have been the couple’s personal assistant and may well have fabricated all or part of his claims regarding Seth and Phyllis because he’s a proven liar and self-serving attention seeker…Before all of that, Seth Tobias was known to the world, to the extent he was known at all, as an upright cable-TV talking head and multimillionaire hedge-fund manager. But that’s getting ahead of the story. Let’s just start at the beginning.

S
ETH
T
OBIAS WAS RAISED
in Plymouth Meeting, a well-to-do suburb of Philadelphia. His father was a doctor, his parents got divorced. It was a common story. After high school, Tobias went to Boston University, where he was an indifferent student majoring in finance.

In his early twenties, Tobias commuted from Philadelphia to New York on the
5:55
“Triple Nickel” train to a series of jobs on
Wall Street. Some of the jobs worked out, some didn’t. At 24, he got his first break. That’s when Tobias began processing trades for a then-unknown portfolio manager named Jim Cramer. Tobias impressed Cramer, but the job didn’t last long. Tobias traded up to a position with the much larger JRO Associates hedge fund. Five years later, Tobias headed out on his own.

Tobias founded Circle T in 1996, at age 32. He named the company after the first letter of his last name, which he had tattooed on his left shoulder just after college. He started the firm with just one other employee, Steve Schwartz, a 25-year-old protégé of Tobias’s from JRO. He’d sit there in the middle of the room, taking in all the data and chatter, and then bark a buy or sell order. He seemed to have a gift for making the right call. “Seth could just tell when to get in and get out of a stock,” says Schwartz. “Seconds matter. He could see a movement in the cost of steel and figure out how that was going to impact companies that did business with GM and make a snap decision two, three moves ahead of other people.”

Tobias lived for what he called “the game,” and to him it
was
a game—who could analyze a company’s quarterly report or process a bit of information fastest and make the first move. He had a pet ritual after the market’s closing bell rang. He’d exhale, check his numbers, then call his friends at other hedge funds and ask them a simple question: “Are you up or are you down?” Simple.

In the early days of Circle T, Tobias was mostly up. By 2002, the firm was valued at almost $500 million, and Tobias was personally worth tens of millions of dollars. He bought homes—in suburban Philadelphia, on the Jersey shore, and in midtown Manhattan. He bought a luxury box at Veterans Stadium, where the Philadelphia Eagles played. A JRO colleague introduced Tobias to some pals at CNBC, and Tobias became a regular on the network’s
Squawk Box
program.

Tobias also liked to party. His longtime friend Patrick Bransome said in a recent deposition that there were many nights
when Tobias would get so loaded he had to drive him home. Bransome would drop his friend on his couch and leave once Tobias passed out.

“Look, Seth was a little crazy,” a former colleague told me. “But we all are. You have to have a screw loose to be in this business and take the risks. You have to blow off steam, or you’ll combust. He liked to blow off steam, too; we’d go to strip clubs and go out drinking. He just blew off steam a little harder than most.”

I
T’S SHORTLY AFTER
N
EW
Y
EAR’S,
and I’m in the West Palm Beach office of Jay Jacknin. Jacknin, Phyllis Tobias’s third husband, is serving as counsel to his ex-wife in the death of Seth Tobias. He’s a short, jolly man with hearing aids in both ears. At one point, he reaches into a file and brings out a picture of Seth and Phyllis on a beach. He starts to make a point about the case but then offers an aside. “She had a great body,” he says. “Women love her. Men find her fascinating. I just couldn’t afford her.”

Phyllis Tobias was born Filomena Manente in 1966 and was raised in Union City, New Jersey. She was brought up by a strict Italian family, and went to Catholic schools. Now and then, she worked as a waitress. Her nickname, a nod to her personality, was Sunny. Just after she graduated from high school, in 1984, she married Vince Racanati. She was 18, he was 24. They had a daughter but got divorced after a year. Phyllis took a job as a secretary on Wall Street, where she met and married a twice-divorced stockbroker named Arthur Tolendini. That was 1987. They lasted just three years.

Phyllis moved to Palm Beach and was selling insurance when she met Jacknin, a divorce attorney. They got married in 1993 and had two children. But in October 2002 Jacknin filed for divorce, claiming Phyllis had gotten numerous credit cards without his consent and run the balance to the maximum. Jacknin didn’t
move out of the couple’s home after they separated. He was worried about his two children. Phyllis was furious about that. The police were summoned three times in 2003, and each time, Jay Jacknin said his wife was the aggressor. He said she struck him, threw a phone, and pulled his hair.

In July 2003, Phyllis got a restraining order against Jacknin, accusing him of assault. Jacknin denied it and retaliated with his own statement. He said Phyllis’s violent moods had reduced him to barricading himself in the nanny’s room. He said that “she will kill” if he tries to gain custody of the kids.

Jacknin also said that Phyllis was on a cocktail of Xanax, Vicodin, and Ritalin and kept coke in the house. He finished by saying that Phyllis had abandoned the children one weekend in July so she could spend time with her boyfriend at the Breakers Hotel in Palm Beach.

The boyfriend was Seth Tobias.

S
ETH AND
P
HYLLIS MET
while they were both in San Diego for the 2003 Super Bowl. The twist is, Jay Jacknin introduced them. Jacknin actually knew Seth first. The two men had met through a mutual friend, Daniel Borislow, an entrepreneur and racehorse owner from Philadelphia who spends part of the year in Palm Beach. At the time, Tobias was separated from his first wife, Tricia White, a South Jersey native. Phyllis was married to Jacknin, but they were fighting all the time and got divorced later that year.

Seth fell for Phyllis right away. Why not? She was blonde, fit, and sexy.

Sure enough, Tobias told his brothers and Circle T partners that he was moving down to West Palm in pursuit of Phyllis. “I can run Circle T from down there,” he said. He and Phyllis could often be seen around town at the Breakers or black-tie charity events.

Seth and Phyllis’s relationship was insane, even in the early days. Phyllis blasted Seth about his coke habit, but they both were heavy drinkers, especially of Champagne. A former Circle T employee says he personally saw Phyllis give Seth coke and use the drug herself on many occasions. ( Jacknin denies those claims.) Seth questioned Phyllis’s emotional stability. They each accused one another of infidelity. It went back and forth like that.

Seth and Phyllis split up for a while, with Seth returning to New York. The former Circle T employee says that Seth told him that Sam Tobias was concerned, warning his brother, “That woman is going to kill you or bankrupt you.”

Tobias didn’t listen. “He was addicted,” says the former Circle T employee, “to Phyllis’s ups and downs.”

After another breakup, Seth was moping around New York and called Phyllis. By the time he hung up, the two were engaged. Knowing that Seth’s friends and family disapproved, the couple eloped on March 4, 2005. “Seth just didn’t show up for work, and we didn’t know where the hell he was,” says the former Circle T staffer. “That afternoon, he called in all sheepish and said, ‘I’m in Belize. I just got married.’”

T
HAT SUMMER,
Circle T took a big financial hit. Seth’s Palm Beach pal Doug Kass had a son, Ethan, who was looking to break into the business, and Seth took him on. In July 2005, Google went public. The question at the time was whether the $85 initial offering price was a good deal. Ethan bet it wasn’t. Circle T lost $12 million when he shorted the stock.

The trades weren’t just wrong. Seth hadn’t signed off on them. The firms’ investments, almost half a billion dollars in 2003, sank to $220 million after the Google screwup. Many hedge funds booked monster years in 2005, but Circle T was down 5.3 percent. There were whispers that Seth was distracted by Phyllis.

Tobias’s marriage was also tanking. Phyllis would often appear
at the office and demand cash. “Give me 15,000 fucking dollars,” she hissed on one visit, according to the former Circle T staffer. Tobias had promised Phyllis that he would stop using cocaine, but she didn’t believe him. In the fall of 2005, the couple was having dinner at Bice, a Palm Beach restaurant, with six other people. Just after sitting down, Phyllis jumped from her seat and placed her lips over Tobias’s nose and began sucking. She was searching for cocaine residue.

A few weeks later, the couple returned to their West Palm Beach home after a night of drinking, and Tobias ripped down a set of drapes that Phyllis had purchased without his knowledge. The police were called, and Phyllis claimed Tobias threw a jar at her. He was arrested for assault, a charge eventually expunged from his record when Phyllis declined to press charges.

There were more fights, more police visits. The following February, one night when she hadn’t returned home from dinner by 2
A.M.,
Tobias drove to Cucina, a West Palm Beach restaurant, and confronted Phyllis, who was having drinks with a male friend.

“You’re a whore!” Tobias screamed, according to police reports.

A passing officer witnessed the rest: “F. Tobias immediately responded by striking S. Tobias across the left side of his face with an open hand. The force of the slap turned S. Tobias’ head and made a loud popping sound…it became clear she was intoxicated. I had to grab F. Tobias so she could not get close enough to strike S. Tobias again. I placed F. Tobias in handcuffs.”

Phyllis spent a night in jail, but the charges were dropped.