The Best American Crime Reporting 2009

by Jeffrey Toobin

  Seth’s family was silent. Ash, meanwhile, hired Debra Opri, an attorney best known for repping Larry Birkhead in his successful quest to prove his paternity of Anna Nicole Smith’s child. Opri had parlayed Birkhead’s celebrity, through book deals and other projects, into more than $1 million.

  BILLY ASH’S GROUND-LEVEL APARTMENT in the predominantly gay Hillcrest neighborhood of San Diego would just about fit in the foyer of Seth and Phyllis’s Jupiter mansion. It’s the morning after Christmas, and Ash, wearing a blue baseball cap and a red-striped Tommy Hilfiger polo shirt, is supervising two movers as they pack up an artificial tree and a fake wreath.

  “I can’t talk to you,” Ash tells me. “You need to call my lawyer, Debra.”

  I was starting to leave when Ash said, “Well, I can give you just some basic information.”

  Ash told me that he met Seth Tobias in San Diego, about five and a half years earlier. “I was shopping in La Jolla, and he came up to me. I’m obviously gay, and he asked me, ‘Do you know where the good gay clubs are?’ We became fast friends, and I went to work for him after that, doing travel, making sure his television appearances happened on time, introducing him to guys.”

  When I asked Ash if he had slept with Seth, he took on a scolding tone. “That’s way, way too personal,” he said.

  I said I was sorry and asked him when he first met Phyllis Tobias.

  “Oh, I never met her,” Ash said. “Our whole relationship was over the phone. But you really need to call Debra. I’m super-busy.”

  We said good-bye, but as I started to walk to my car, Ash’s words hit me. He had never met Phyllis Tobias? The man driving a murder investigation that was the subject of a major New York Times story, the man who claims to have first-hand knowledge of the alleged killer’s thoughts, had never met the woman?

  I rang the doorbell again.

  I asked Ash if I’d understood him correctly. “Yes,” he said matter-of-factly. “We talked and texted ten times a day. We were really close. I knew everything about her.”

  Then Ash talked for another hour. He said that Seth and Phyllis had met at a suburban San Diego sex party in 2003, and that their 2005 marriage was one of mutual convenience. “He needed a trophy wife for his investors, and she needed someone with lots of cash. I think they had sex maybe twice.”

  According to Ash, he was bombarded with calls from Phyllis over Labor Day weekend. “That Sunday, they were having a housewarming barbecue for a few friends and she got pissed because Seth was checking out a cute guy who was there. She’d just had enough.”

  Then he told me how Phyllis killed Seth. His version, that is. “That Monday, they went to the bar at the Breakers and Seth was doing coke and drinking, but Phyllis wasn’t. Seth called me [later], and I told him he needed to go home to his wife and make nice. He was pissed because she had spent $16,000 on drapes, and I told him, ‘You can’t take them back, they’re custom made. But take them down and put them in the office so she knows no means no.’ But she thought he’d taken them back, so she was extra-pissed. In their new bedroom they both have these big walk-in closets, and she had put a Baggie filled with crushed Ambien in the safe in her closet. Seth needed the Ambien to balance off the coke. So she tells him that she wants to start new, and she’s going to cook him dinner and make him pasta à la vodka. She mashed the pills into the sauce, but the problem was it turned the sauce purple and Seth said, ‘This tastes like shit, I’m not gonna eat it.’”

  Ash paused, and glared at one of the movers. “Hey, the lights are part of the tree, it’s the tree that comes apart.

  “Now, where was I? Then Phyllis said, ‘Eat it, you’ll feel better, and then I’ll call Tiger over, and I’ll watch you two have sex in the pool.’ But first she took these pictures of him looking all fucked up. Then Seth walked into the pool, and the Ambien started having its effect. She went back inside, did the dishes, took the dog for a walk, came back, and went out to the pool. The only problem was, he was still alive; he was passed out but floating on his back. She rolled him over, and that’s how he died.”

  Um, how did he know all of this? “Phyllis told me,” he said. “I was coming back from Penn State with a friend that day, and I had turned off my phone because I just could not deal with them anymore. When I turned my phone back on, I had a message from Phyllis saying, ‘Seth’s dead.’”

  Ash says at that point he called the lawyer Gloria Allred, of Laci Peterson fame. “I knew her because of the Peterson case, and I lived around where Laci did. She told me I had to go to the police.”

  Ash stopped to direct the movers again, then delivered this doozy. This past September, he said, he was sitting at home speaking to the Jupiter detectives when he got a FedEx box from Phyllis. “A while back, she had me track down two cases of Krug Champagne that went for $2,000 a bottle. So I get this box before Seth’s funeral, and I was like, ‘Oh my God. Is Seth’s head in that box?” But it was a bottle of Krug with a note that said, ‘The scumbag is dead.’”

  At one point, Ash had said that Phyllis had explicitly fessed up and that he had her confession on tape. But now he retreated a bit. Now he told me she had only implied on the tape that she’d poisoned her husband. Still, he insisted that she had, in fact, confessed to him—just not when the tape was running.

  I asked Ash if he could provide a snapshot or any other evidence to back up his claim that he and Seth Tobias had ever met. I asked him if I could see the photos of Tobias taken the day he died. He tugged at his cap and shifted his weight. “You really need to call Debra and make a proposal.” He wanted money before speaking to me further. “I’m only telling you one percent of it. Make a good proposal, and I’ll tell you more.”

  THE 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.

  DAVID FOREST, 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.

  AN 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 TOBIAS 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 witness? 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 i
ncluded.

  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.

  STEPHEN RODRICK 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.