Experts say it is a risky, if necessary, move to investigate all leads in a case in which Storts has already broached a third-party theory that seeks to shift focus away from Schwartz, once Stidham's boss and the man accused of hiring a hit man. That hit man allegedly stabbed Stidham 16 times and bashed his skull on Oct. 5 in the parking lot of Stidham's medical office at 4727 N. First Ave.
"You've got to have proof," said Leo "Chip" Plowman, a longtime assistant public defender now in private practice. "If it's just a fishing expedition, it's a problem. If you don't have proof, you're in serious trouble. It's like demonstrative evidence in the court. You better make sure it fits."
Michael Piccarreta, a top Tucson defense lawyer who successfully represented Schwartz on federal drug charges in 2002 and who briefly represented Schwartz in the murder case, said defense lawyers have an obligation to pursue any and all leads "even when it might seem distasteful."
That pursuit must be rooted in a "good-faith basis for believing something," Piccarreta said. "You always feel for the victim, but you have to put that to the side. You can't really fault somebody for trying to find things out. You have an obligation to run some things down."
Storts said that is what he is doing. Facts in murder cases, he adds, "are not always what they seem." Shining an unflattering light on a beloved victim isn't necessarily a slippery slope, Storts said.
But Richard Platt, one of two Pinal County prosecutors handling the case against Schwartz and Ronald Bruce Bigger, who is alleged to have carried out the hit, dismissed Storts' motion as a desperate move typical of a weak defense.
"As far as we know, there is no evidence" that Stidham was having an affair, Platt said.
Storts' inquiry is heavy with that suggestion about Stidham, who would have celebrated his 38th birthday on Aug. 13. He links it with reports from several sheriff's deputies who consistently noted that they saw a will in open view when they awoke Daphne Stidham to tell her that her husband had been killed.
"Her behavior, as described by the deputies themselves, was either bizarre or inappropriate," Storts wrote in a July 25 motion that asks for permission to have Daphne Stidham answer questions about her husband. Prosecutors say that what deputies saw was not a will, but estate-planning documents and a letter from tax and estate lawyer Jill D. Wiley.
Storts wrote that the defense team "has the right to investigate and explore whether or not other persons may have been interested in causing Dr. Stidham's death. The defendant does not wish to offend Ms. Stidham. (Our) obligation to the defendant requires that he seek information necessary to establish or disprove that Ms. Stidham may or may not have been involved in Dr. Stidham's death."
Daphne Stidham sold the family's home in the tightly packed Ventana de Sierras subdivision south of Sunrise Drive and west of Kolb Road shortly after her husband was murdered. She moved with her children to be with family in Texas.
Schwartz, Storts wrote in the July 25 motion, "also is requesting that prosecutors inform him whether or not Ms. Stidham suspected that Dr. Stidham was having an extra-marital relationship. If so, the defendant is asking the court to order that the defense be advised concerning who it was that Ms. Stidham may have suspected Dr. Stidham of having a relationship with."
Additionally, Storts wants copies of Stidham's insurance policies and beneficiary information and the dates any policies were acquired.
The Stidhams met with Wiley in the summer of 2004. In a Sept. 27 letter that was included in the court file, Wiley outlined shifting property and other assets in a trust. Wiley also noted in that letter that the Stidhams "recently acquired a term policy insuring Brian's life with MetLife."
Piccarreta said he likely would have made subtle inquiries about these sensitive subjects in a letter to prosecutors rather than in a court filing. A judge also could be asked to review the information and documents privately in chambers.
Storts asserts that he attempted to get the information from prosecutors via an April 2 letter, which he attached to his July 25 motion.
"I do not wish to offend Ms. Stidham or cause her unnecessary anxiety," Storts said in the introduction of the letter to Platt's co-counsel, Sylvia Lafferty. Then Storts posed five questions beginning with: "Was Dr. Stidham having an extramarital affair ... at the time of his death? If so, please identify this person and provide me with a last known address and telephone number so that I can communicate directly them."
Storts said he never heard back. A denial would have sufficed.
"Why doesn't anybody want to criticize the state (prosecution)?" Storts asked in an interview.
Platt said that sullying a victim is a well-established gambit that, to him, indicates desperation.
David Alan Darby was vilified in his defense of Beau Greene, convicted in 1996 of the brutal beating death of UA music professor Roy A. Johnson. Darby, seeking reduction from first-degree murder to manslaughter, said that the immensely popular Johnson tried to hit on Greene, who, Darby suggested, went wild over the homosexual advance.
The tactic infuriated Johnson's wife and family, as well his friends. It backfired, and Greene was given a death sentence.
Darby makes no apologies for his strategy that he said was meant "not to get Greene off for what he did but as mitigation, explaining why he did what he did."
Still, Darby said now: "I'm not going to purposely trash a victim if I don't have something else."
Meanwhile, Schwartz's defense is pressing Judge Nanette Warner to exclude information about Schwartz's 77-count federal indictment in 2002 in connection with a poorly concealed prescription-fraud scheme. Schwartz took a plea on two counts and had two months remaining on his probation when he was arrested for Stidham's murder.
Storts said that has no bearing on the murder case. Prosecutors, buttressed by numerous witnesses, say Schwartz so detested Stidham for taking away patients that he wanted to have him killed. But Storts, as Piccarreta did before, said Schwartz was well on his way to rebuilding a successful practice. Moreover, Storts said, Schwartz bore no ill will toward Stidham concerning the drug bust, because Stidham had nothing to do with it.
Platt said the federal drug charges are "part and parcel to his motive to conspire and to kill Dr. Stidham." Platt, on July 29, told Judge Warner that he needs to explain to jurors in the trial that is set to begin Nov. 15 about the drug bust, because Schwartz was forced to submit to regular drug testing.
It was at a Tucson lab, Platt said, that Schwartz in February 2004 asked others dropping urine "if they knew someone he could hire to kill someone." Platt said three witnesses will testify about Schwartz's hit-man shopping.
Warner has yet to rule on the admissibility of the federal drug charges. Also pending is whether Schwartz's ex-fiancée, Tucson lawyer Lourdes Lopez, will testify. Storts said that she shouldn't, because she acted as Schwartz's lawyer and what he told her is protected by attorney-client privilege. In response to Platt's question's during a July 11 hearing, Lopez said the things Schwartz said about Stidham "were all made outside" the attorney-client relationship. "We were dating," she said. "We were going to be married."
That brief testimony sharply conflicted with the aborted appearance Lopez made at Storts' office earlier, on July 11. Set for an interview, Lopez and her lawyer, Richard Martinez, unexpectedly invoked the attorney-client privilege. She told Ken Peasley, a Storts aide, that she wouldn't talk unless Schwartz waived the privilege.
The Schwartz case spilled over Aug. 1 to the Tucson Police Department. Chief Richard Miranda, his command staff and city lawyers are asking the city Civil Service Commission to uphold the termination of Lt. Wendell Hunt. Police claim Hunt supplied information to Schwartz, or did so through Hunt's girlfriend, Julie Herrington, who was going to join Schwartz's planned plastic surgery practice as a cosmetologist.
"Dr. Schwartz never met Wendell. Never," Hunt's lawyer, Jeff Rogers told the commission on Monday. "They have concocted this theory that this guy was feeding information to a murder suspect. It's poppycock."
Hunt, already on thin ice despite a 17-year record of mostly top performance, was ensnared in the Schwartz case when Herrington asked him on Oct. 6 if he knew anything about the murder of a doctor the night before. Hunt checked his computer and said it didn't show such a homicide in the city. Stidham's office was just outside city limits, and the sheriff's department has handled the investigation.
Five days later, Hunt was summoned to meet with two sheriff's deputies late at night at a Tucson police station. They quizzed him about Schwartz--one TPD support worker claimed falsely that she saw Hunt having dinner with Schwartz at El Corral--and Hunt told them his girlfriend planned to work with him. Sheriff's deputies dispatched two colleagues to Herrington's house, where she was talking to Schwartz on the phone. She told Schwartz that detectives were at her door and passed along Hunt's phone number to the doctor. And as sheriff's deputies were interviewing Hunt, his phone rang and showed Schwartz's ID. The doctor left a message, and Hunt, under the direction of the sheriff's deputies, talked with Schwartz and elicited useful information.
"He helped these sheriff's deputies every step of the way," Rogers said. "This case is a house of cards."
Bradley Schwartz Ronald Bigger