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Dead Man’s Float

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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 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.

Editor's note: On Monday, February 11, the Palm Beach County State Attorney's office decided that Phyllis Tobias will not face criminal charges in the death of her husband, Seth Tobias. "Based upon the evidence available at this time, including the autopsy and toxicology reports, there is no indication of criminality in the death of Mr. Tobias," Assistant State Attorney Mary Ann Duggan wrote in a letter to the Jupiter Police Department. The Tobias brothers' lawsuit seeking to prevent Phyllis Tobias from inheriting Seth's $25 million estate is ongoing.


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