The Best American Crime Reporting 2009 (23 page)

T
HE NEXT DAY,
I started checking out Ash’s story. Phone records confirm that he talked to Phyllis more than a dozen times in the days after Tobias’s death. At one point, Ash had told me that he had been “deputized” by the San Diego Police Department to tape Phyllis, but the department says it didn’t happen. The Jupiter detectives won’t say if Ash received a FedEx package from Phyllis while they were interviewing him at his home, but really, how likely is that? Under oath, Lucille Schiavone, Tobias’s secretary, maintained that she had heard of Ash only in relation to his attempted shakedown of Seth. And Schiavone said she was the one who handled Tobias’s travel arrangements.

Most reporters covering Ash’s stories have included a quick disclaimer saying Ash had been arrested multiple times for prostitution before quoting him extensively. None of them, however, have gone into any detail about Ash’s criminal history.

When I Googled “William Ash,” the search led me to a 2001 cover story in the Broward-Palm Beach
New Times,
a free weekly. The story documented more than a dozen cons that an overweight man by that name perpetrated on the South Florida gay community. There was a picture: It was the same guy.

The swindles listed in the
New Times
included stealing the client list of a company that sold goods manufactured by the disabled and setting up a rival company; a stint working at Fort Lauderdale’s CenterOne, an AIDS-counseling center, that ended when Ash was fingered for lying to a tabloid and telling them Tina Turner was a patient; and chartering a boat for his 31st birthday and spending thousands of dollars on flowers and balloons by telling vendors he was throwing a party for Dolphins owner Wayne Huizenga and that the Miami businessman would be footing the bill. In 1997, Ash spent six months in jail on a combination of those charges and for running a prostitution ring. At the time, Ash was billing himself as Mr. Madam and boasted he had an offer to write a book about his days as a Heidi Fleiss-like pimp. The book never happened. Ash headed out for San Diego shortly after the
New Times
story appeared.

D
AVID
F
OREST,
a prominent agent in the gay-stripper business, gave me Tiger’s phone number. I reached him at his parents’ home outside of Spokane. Now married, Tiger has a baby daughter who could be heard screaming in the background. After the New York
Times
story broke, Tiger, a.k.a. Christopher Dauenhauer, at first offered a denial of sorts. He didn’t recall meeting Tobias, he told reporters. “I meet a lot of people, I don’t always remember names,” he told me when I asked him to explain. But once Ash’s story gained momentum, Tiger changed his mind. “When I thought about it more, I did remember Seth,” he says.

Then he told me that he hooked up with Tobias six or seven times, including on more than one occasion in Las Vegas. “Seth
was a nice guy,” he said. “He was very good to me.” As with Ash, I asked him if there was any tangible evidence that he knew Tobias. Tiger said there was none.

Next came a story that might have made Billy Ash blush. In fact, it’s a story that seems flat-out loony. As Tiger tells it, he was living in Los Angeles a few years ago when he went to get his hair cut in West Hollywood. Out front were two attractive women. Tiger, who says he is bisexual, chatted them up. He said the girls were interested in rough sex, and the trio headed back to his RV in Orange County. “We were tying each other up,” says Tiger. “When it was my turn, they handcuffed me and threw a blanket over my head. Then they let in a guy who starting beating the shit out of me and forced drugs in my mouth. I woke up in prison. Then when I heard about Seth, I listened to the 911 tapes and heard Phyllis’s voice. She was one of the women. She must have heard about my affair with Seth.” What Tiger was saying, in other words, is that a jealous Phyllis Tobias traveled all the way across the country, deliberately hunted him down, lured him into a lurid sexual tryst, and assaulted him. Jacknin emphatically denies it. “That story is such bullshit, I can’t even believe I’m answering it.”

I asked Tiger for the name of the hospital he was treated at, specific dates of the assault, or any other corroborating details. “I don’t know,” he told me. “My memory isn’t so good.”

On January 9, Billy Ash added yet another wild twist to the story. He told the New York
Daily News’
s “Rush & Molloy” that Phyllis had paid $100,000 to Madam Simbi M’Arue, a voodoo artist who sometimes goes by the name Mama, to place a hex on her husband while he was still alive. Two days later, he told the same column that Tobias liked to have his genitals sheared by another gay porn star named Angel. Ash claimed Phyllis had even FedExed him a lock of Tobias’s public hair. No Mama or Angel ever came forward.

That same week, I received an e-mail from Ash asking me if I
wanted to come to his deposition. January 31 and February 1, in Beverly Hills. For the estate case. Ash told me this was my formal invitation, and no RSVP was required. He signed the e-mail, “Hugs, Billy.” I flew back to California.

A
N HOUR BEFORE THE DEPOSITION
was set to start, Debra Opri’s conference room was being prepped for television. A crew of four vacuumed up debris and installed a stylish new tabletop. An ugly hole in the wall was covered with a blue-sky backdrop. A curtain was removed so that reporters could watch through a glass wall. Ash was dressed in a black suit and white shirt, with a yellow tie. His face was covered in pancake makeup.

Despite Ash’s best efforts, the media turnout was disappointing, just a CNBC crew and me. Every now and then, Opri would get out of her seat for a cup of coffee and wink at me and the CNBC cameraman on the other side of the glass.

Ash worked the phones on his lunch break. “Call ‘Page Six’ and tell them what’s going on,” he told someone on the other end of his cell phone. He clicked off and then told me, “I’m glad to get this over with. This is a fight about money. I didn’t want to have anything to do with it. I wish she had never told me she killed Seth. I’ve already cried twice today. I didn’t know I’d feel this emotional.”

Phyllis’s lawyers spent much of the first day poking holes in Ash’s story. By the end of the day, Ash looked exhausted as he headed toward a car and driver who would take him back to his Hollywood hotel. “Her lawyers are not nice people,” Ash said. “How many ways can they tell me I’m a fat pimp?”

Once again, Ash’s story continued to evolve. I asked him again when was the last time he had seen Seth. “In Las Vegas, over two years ago,” he answered. When we first talked, he had told me San Diego. I mentioned in passing his role as Phyllis’s online
psychic, and he vigorously shook his head. “No, I was never her psychic, I was always their assistant.” I then asked him if he had brought the Krug Champagne bottle as evidence. He just laughed. “Oh no, I re-gifted that and gave it to someone who was very nice to me.”

If he had never met Phyllis in person, I asked him, if he had not seen Seth in the two years prior to his death, why would they confide the intimate details of their life to him? “They knew I had a dark past,” Ash said. “They knew I didn’t want that to come out, so I’d keep their secrets, too.”

The next morning, Ash and Opri got their makeup done together. “God, my hair is so flat,” said Opri. “How can I pouf it up?” Meanwhile, her client crowed over a new rumor. “Did you hear the toxicology report is back?” Ash said. “He had cocaine and Ambien in his system. It proves everything I’ve been saying has been the truth.”

The second-day interrogation was even nastier than the first. Around noon, Ash could be heard shouting “You will respect me” at Gary Dunkel, one of Phyllis’s attorneys. “I don’t respect you,” Dunkel responded. “You’re a liar.” Ash stormed out of the room and summoned me to Opri’s office again. “I am not going to put up with this much longer,” he said. “I’ve learned two important things: One, don’t murder your husband and tell a fat fag with a big mouth. Two, the fat fag shouldn’t talk to the press.”

A
WHOLE LOT ABOUT THE
T
OBIAS
case remains unknown. Billy Ash was right about the toxicology report. It showed Tobias had cocaine and a lethal amount of Ambien in his bloodstream. But it reached no conclusions about how the drugs got there. Maybe Seth took the pills himself, in a drunken accidental overdose. Maybe Phyllis secretly fed the pills to him. Maybe Seth took the pills himself, and Phyllis, finding him in the pool
in his addled state, took the opportunity to let him drown. Without an eyewitness or some new smoking gun, and given Ash’s—well, given Ash—it’s hard to imagine the truth will ever really be known. Police won’t comment on where their investigation stands or what they know.

Did Seth Tobias have a secret gay sex life? All I know is there are serious holes in Billy Ash’s and Tiger’s stories, close friends and colleagues insist they never saw any evidence of gay relationships or trysts, nor did they ever suspect Seth was gay, and no one else has come forward with other claims. Remember Adiel Hemmingway, the Cupids manager who told the New York
Times
that Tobias was a frequent visitor to his club? It turns out he had given a deposition in the Tobias-estate lawsuit a month earlier that flatly contradicts what he told the newspaper. In the deposition, he said that he had never met Seth or Phyllis Tobias, and, as far as he knew, Tiger had never performed at Cupids.

What about the fight over Tobias’s estate? The Tobias brothers’ lawyers filed a motion for summary judgment against Phyllis Tobias earlier in the month that lays out key parts of their case. The motion quotes Seth’s personal secretary and driver saying that their boss was getting ready to divorce Phyllis in the weeks before his death. The Tobias brothers say that Phyllis knew the papers were imminent and that forced her hand. The motion also contains copies of a bill that shows that Phyllis had the couple’s pool resurfaced nine days after her husband’s death. Tobias’s secretary told attorneys in the case that Seth told her that Phyllis “had fed him ‘discolored eggs and he felt drugged’” shortly before his death. The Tobias brothers also say that the paramedics’ ruling that rigor mortis had set in by the time they arrived suggests that Seth was dead long before Phyllis’s 12:08
A.M.
call to Brett Borgerson and the subsequent 12:45
A.M.
911 call.

Jay Jacknin, of course, sees things differently. “Their side tells a pretty story,” he says. “But where’s the proof? Where’s the wit
ness? They don’t have any, because their case is all bullshit. This is a story based on the allegations of a convicted felon who’s just not credible.” And the Ambien in Tobias’s system? Tobias, Phyllis’s lawyers say, was a drug addict. He snorted everything, Ambien included.

The clincher, Phyllis’s legal team says, is that a day or two before Ash contacted the Tobias brothers, Ash sent an e-mail to JoAnn Kotzen, Seth and Phyllis’s family lawyer, saying, “The bottom line is Seth lived a lot longer by being with Phyllis.” In the e-mail, Phyllis’s lawyers say, Ash asked Kotzen for $35,000 in legal fees. She wrote back that as a witness, Ash shouldn’t have legal fees, and no payment would be coming. It was only after that, Phyllis’s lawyers say, that Ash called the Tobias brothers and claimed that Phyllis had told him that she killed Seth. (Ash denies asking for legal fees from Kotzen.)

Jacknin then floats a possible defense for Phyllis Tobias that won’t win her wife of the year but might get her off the legal hook. “Look, the law isn’t did she not call 911 quick enough or did she not pull him out of the water quick enough. The law asks whether she caused his death, and that is not provable.” The request for summary judgment was recently continued by the judge. Who knows, in the end, who’ll get what?

I never saw Phyllis Tobias. She wouldn’t talk to me. She still hasn’t been accused of any crimes. Seth Tobias’s brothers wouldn’t talk to me, either. Billy Ash? I e-mailed with him just the other day. He sent me a picture of himself. He said he was at Mardi Gras. He wore a mask, a string of baubles around his neck, and a fortune-teller’s turban. He looked like he was having an excellent time.

S
TEPHEN
R
ODRICK
is a contributing editor for
New York
magazine. He lives in Brooklyn and Los Angeles.

Coda

Shortly after this story was published, Palm Beach County law enforcement announced no charges would be filed against Phyllis Tobias, citing insufficient evidence. Later in 2008 the Tobias brothers and Phyllis Tobias reached an out-of-court settlement regarding Seth Tobias’s estate. The majority of his estate was granted to Phyllis.

FROM
The New Yorker

A
JUDGMENT SOMETIMES APPLIED
by professionals to a non-lethal weapon is that if the weapon is any good—if it reliably protects someone from being attacked or subdues a person without causing harm—criminals will use it. Absent a small number of robberies committed with pepper spray, though, they haven’t really taken to any. According to Charles Heal, an expert in non-lethal weapons, the problem is that the field is nascent, and “the options are primitive. The whole state of the art is only a shade over a decade old.”

“Non-lethal” is an imperfect term. “Lethal weapons are defined by their capability,” Heal says. “Non-lethal are defined by their intent.” In the hands of the police, non-lethal weapons are meant to resolve a crisis (say, a Hells Angel in a bar who has broken a chair over someone’s head and is overturning tables, and who, when asked to leave, draws a knife) without anyone getting badly hurt or being killed. They are also sometimes called less than lethal, less lethal, controlled force, soft kill, mission kill, and minimal force. There is no established lexicon for non-lethal weapons,
but there are accepted categories and concepts, including impact or kinetic weapons—things that strike, such as batons, billy clubs, saps, and projectiles fired from shotguns (including bean bags and stun bags, which usually have sand in them instead of lead pellets), and “vivi,” meaning animals. “Dog is the only non-lethal weapon I can change my mind about after I deploy it,” Heal says. “The suspect sees me and puts his hands up, I can call it back. If I launch a bean bag, it’s downrange. Dog’s also the only one with target-acquisition radar: suspect moves, dog does, too.” In addition, there are irritants, such as tear gas, which was first used on a crowd in Paris, in 1912; malodorants (stink bombs); obscurants, which interfere with seeing, either by means of lasers or smoke or other substances; electrical, such as Tasers; physiological, which includes noises that are too loud and lights that are too bright, sometimes combined in devices called flashbangs; reactants, which include activities such as cloud seeding (conducted in Vietnam above the Ho Chi Minh Trail); and soporifics, which are also called calmatives, sedatives, and hypnotics. “What they used in the Moscow Theatre,” Heal says, referring to the occasion, in 2002, when Chechen terrorists took over a theatre, with nearly eight hundred people in it, and were subdued with a chemical delivered through the ventilation system. More than a hundred of the hostages died, some of them as a result of the chemical. Still, Heal says, they are the only weapons that “allow you to intervene in a lethal situation without having to resort immediately to lethal force.”

Heal was among the first Americans to use modern non-lethal weapons, as a marine in Somalia in 1995. One was a foam called sticky foam, which was shot from a hose and designed to fix a person’s feet to the ground. The problem was that people could move their feet faster than the sticky foam could be applied, although, Heal says, if you hit a person’s thighs his legs sometimes stuck together. Heal’s orders were to provide a twenty-minute window between the withdrawal of American soldiers and the arrival of “the people with crude weapons and guns on the backs
of old trucks who’d rush in to take over.” He had his troops scatter caltrops, ancient devices made of spiked rods welded together in such a way that, however they land, a spike faces upward, like a child’s jack. The Somalis cast the caltrops aside. Heal had his soldiers lay down more caltrops and cover them with sticky foam; the Somalis picked these up, too, and threw them away, although it took longer. Heal’s soldiers then put down sheets of plywood, laid concertina wire over the plywood, laid caltrops on the plywood, and covered everything with sticky foam, which held up the Somalis for about five minutes, sufficient for the troops to retreat. Heal and others think that sticky foam might work in an embassy or at a missile base or a nuclear plant, where the floors could be flooded if someone broke in.

For more than thirty years, Heal, who is fifty-eight, and is known as Sid, divided his career between the Marine reserves and the Los Angeles Sheriff’s Department. (The Sheriff’s Department acts as the police in parts of Los Angeles County that are not incorporated, and in cities such as Compton, where its services are retained by contract.) He is probably the most knowledgeable figure in America on the civil uses of non-lethal weapons. According to Nicholas C. Nicholas, the lead scientist at the Institute for Non-Lethal Defense Technologies, at Penn State, “There’s nobody close to him. I saw him interviewed on TV the other night, and I said to my wife, ‘That’s Mr. Non-Lethal Weapons as far as the police are concerned.’ Heal has served on the front in four wars—Vietnam, Somalia, Kuwait, and Iraq. When he returned from Somalia, he says, he “ended up on the lecture tour for the Marines in lessons learned.” The Los Angeles undersheriff called him into his office and said that if he could specialize in non-lethal weapons for the Marines he could do it for the Sheriff’s Department. Heal became the only municipal-law-enforcement figure in America then devoted to non-lethal weapons.

Manufacturers typically produce non-lethal weapons for soldiers, because the military market is larger and the military has
more money. To sell weapons to the police, the manufacturers tend to modify, rather than redesign, the military versions. In addition, manufacturers often take advice from retired military officers, who, Heal says, have “no insight into law enforcement.” Heal began urging inventors and manufacturers to design non-lethal weapons for policemen rather than soldiers, and whenever they made something he tested it. He assumed that manufacturers would be responsive, because the L.A.S.D. is so big—“Sixteen thousand employees, five thousand vehicles, and I don’t know how many boats and planes”—that he thought it could be a market in itself. As an incentive, Heal was willing to provide for free the expertise for which manufacturers paid consultants hundreds of dollars an hour.

Heal had a talent for describing to a manufacturer precisely what a policeman needed and whether or not its product worked well. Over the years, about twenty-five ideas that inventors and manufacturers have approached him with have become products, including a portable robot called a Throwbot, which has wheels and a camera and can go into rooms where someone might be hiding with a gun; the SkySeer, an unmanned aerial vehicle with a camera; the Pepper-Ball, a projectile like a paintball that disperses an irritating powder; and a few repulsive malodorants. Among those that haven’t worked out are the Bola Ball, which a policeman would carry on his belt and fling at running suspects (it was too difficult to master), and a device shaped like a pistol which used ultrasound to detect concealed weapons (it worked well on cotton and wool but less reliably on leather or synthetic fabrics). Recently, Heal has attended tests of the Active Denial System, or A.D.S., made for the military by Raytheon, which sends a beam of energy that heats a person’s skin to a hundred and thirty degrees within a matter of seconds. It is sometimes called the pain ray. Heal says that being beamed with it is like stepping into a scalding shower. “It’s the first non-lethal device in history to provide protection against lethal force, because its range exceeds rifle fire,” he says. The military hopes to use the A.D.S. in
Iraq to disperse crowds or stop people at check-points who keep coming after being told to stop. It currently has little use in law enforcement, though. “If they gave it to us for free, we probably couldn’t use it,” Heal told me. The first police chief to use the pain ray on Americans would become famous overnight.

It isn’t so much that the police are uncomfortable about using violence when they feel that their safety is jeopardized; it is that often when they kill people they end up in lawsuits. When a non-lethal weapon is being tested, Heal says, the critical standard is whether it creates a “save”—that is, whether a person who would have been killed was instead apprehended, because the manufacturer can then cite the dollars saved from a lawsuit. The standing of any non-lethal weapon that creates a save advances from speculative to favorable. According to Nicholas, the non-lethal weapon that everyone desires is “the phaser where you can put it on stun.”

Non-lethal weapons can force a suspect to declare his intentions, and that sometimes leads to a save. Heal once took part in a gun battle with a man who was shooting at him and his fellow-deputies from behind a barricade. “He had a Winchester .458 calibre,” Heal says. “An elephant gun—the bullets are as big as your thumb. He’s shooting through cinderblock walls, and we’re using the holes to look back at him. Finally, he comes out with his hands in his pockets. We’re all yelling, ‘Get your hands out of your pockets.’ All around me, I can hear the slack coming out of the triggers—they’re about to shoot. It’s pretty clear he’s trying to commit suicide by cop, but what if there’s a weapon in his pockets? What gets us killed isn’t the ability to apply lethal force; it’s the reluctance to use it, and the reason we’re reluctant is that we can’t make informed decisions. The rules of engagement that allow us to use lethal force mean that we have to tolerate a lot more abuse and risk. With a non-lethal-weapon option, you don’t have to accept the conditions offered. What happened was, someone threw a flashbang at this guy, and his hands came out of his
pockets, and we jumped him and wrestled him down. The flashbang enabled us to determine his intentions. That’s a save.”

H
EAL IS ABOUT SIX FEET TALL.
His carriage is erect. He has a large nose and sharp, elemental features—he looks a little as if a child had drawn him. He is exceptionally fit—he runs every morning before dawn, and sometimes he rides his bicycle a hundred miles in a day. His manner is emphatic, and his eyes sometimes widen when he speaks. He has blue eyes and brown hair cut short on the sides and a little longer on top. Several times a day, he plants his feet, takes a black comb from his back pocket, and draws it slowly across the front of his head, smoothing his hair with his following hand so that it stands up like a hedge. Commanders in the L.A.S.D. (there are twenty-eight of them) can wear their own clothes, but Heal would always wear a uniform. He was the only commander who did. “I have color-coördination issues,” he says. Heal grew up on a farm in Michigan. The trip he made at the age of eighteen, to San Diego, to join the Marines, was the first time he had ever taken a bus or a taxi or a plane. While he was there, he saw his first movie. His hearing was damaged during training, when a soldier stepped on a trip wire that set off a booby trap about a foot from his head.

Heal has been injured more often at work than he was at war. Between 1979 and 1982, he was a deputy sheriff assigned to South Central L.A., where, he says, he couldn’t drive down the street without seeing a crime. One year, he drew his gun so many times that the bluing on the barrel wore off. He has surgical pins in his hand from a fight with a glue sniffer. Another drug suspect broke his nose, leaving a scar between his eyes that looks like the flippers on a pinball game. (“It’s not pretty,” Heal says, “but it’s better than what I had.”) He was also hurt repeatedly in fights with suspects intoxicated with PCP, which is a dissociative anesthetic. “They’d take off their clothes, because their body temperature was so hot,” Heal says. “They’d be slimy hot, and they’d jump into swimming
pools and showers, and, for whatever reason, they’d climb onto roofs. If you got a call for a naked man on a roof, that was PCP.”

PCP made even small men feel unnaturally strong, and a strong man was nearly impossible to subdue. “The only way to overwhelm them was with weight,” Heal told me. “We tried nets, we tried poles, ladders, fire extinguishers.” For a while, they tried throwing blankets over them and binding them with ropes. One man, a Samoan, required four officers to bend his arms into handcuffs. “Non-lethal’ was hardly a term in those days,” Heal says. “The non-lethal options were a baton, which all it did was get the guy mad, or tear gas, which they didn’t feel and tended to work better on us.”

Heal’s field trials of new weapons last several weeks or months and involve sometimes just a few deputies and sometimes as many as five hundred. In 2000, he tested the TigerLight, a flashlight that also dispersed pepper spray. Deputies carried pepper spray and flashlights on their tool belts; the problem was that fights broke out too quickly for them to get to their pepper spray, whereas they usually had their flashlights in hand. “When a deputy gets in trouble, he’s going to hit with his flashlight, and you’re going to get stitches, which almost always result in lawsuits,” Heal says.

Initially, Heal distributed twenty TigerLights. The deputies didn’t like that when the lights were upside down the pepper spray leaked on them. The manufacturer fixed the problem, and in 2005 Heal gave out five hundred TigerLights. “We figured if the option to use the spray in the TigerLight could reduce head strikes by even two or three per cent we’re going to recover the money the TigerLights cost,” Heal says. The difference was closer to thirty per cent. “It was a real sleeper.” He says that at the end of a trial the endorsement he looks for is that deputies complain when he takes the weapon away.

M
ANUFACTURERS WHO HAVE A PRODUCT
that they want
Heal to consider tend to bring it to him, but he also travels a lot. He answers anyone who contacts him, and he has spent a good deal of time driving around Southern California visiting inventors. Recently, I went with him to see David McGill, a retired member of the L.A.P.D., who had written a letter describing a device he calls the Carpoon. McGill and his wife live in Temecula, about seventy miles southeast of L.A. The Carpoon is designed to stop cars that are fleeing the police.

“People have thought of all kinds of harpoon devices,” Heal told me on the way to McGill’s. “Some shoot out the tires, some lock onto the car, then you drag them to a stop by slamming on the brakes. What we’re going to see here is called a running gear-entanglement system. His idea is he fires a probe that hits a tire then rolls a cable around the axle and kills the ability to drive the wheel. It’s the release part that’s a good idea—being entangled is not attractive. Nobody likes entanglement. You’re entangled, he spins out, which makes us spin out; it’s like a boa. There’s so much civil liability with that. Even if a bad guy’s breaking the law, he was safely breaking the law until we spun him out.”