On Monday morning, when visiting Judge Don Cosby called to order his courtroom in downtown Dallas, he quickly noted the absence of the co-defendants in the case he was about to hear. Steve Aubrey and and his partner Brian Vodicka had moved to Florida. The original plaintiff in the case, Ira Tobolowsky, wasn’t there either. He’d been murdered in his North Dallas garage on May 13, 2016.
This defamation suit was anything but usual. Ira’s widow, Debbie, and their three sons were all in the courtroom. The sons had continued to pursue the case after their father’s death. And they all believe that Aubrey killed Ira. Aubrey’s unorthodox defense in the defamation case — some done pro se, some done by Vodicka, a lawyer — had consisted of numerous lengthy and venomous motions. But after the couple’s move to Florida, they quit showing up at hearings. Two judges had voluntarily recused themselves from the case after Ira’s death, and the Supreme Court of Texas had to appoint Cosby, a Fort Worth judge, to hear the case.
A key reason the family and police suspect Aubrey in the murder is the personal animosity he showed against Tobolowsky, who had represented Aubrey’s estranged mother in a contested estate case. Aubrey strongly denies that he had anything to do with Ira’s death. Aubrey and Vodicka have said in court filings that they are indigent and could not afford to travel to Texas for the trial. They asked Judge Cosby if the court would pay for travel and lodging. They also asked to appear by telephone. Cosby denied that request.
The bailiff yesterday called out into an empty court corridor: “Mr. Aubrey? Mr. Vodicka?” He walked back into the courtroom and shook his head. The judge nodded. Time to begin.
Tobolowsky’s attorney, Steve Schoettmer, rose and motioned to the empty defense table. “I wish the defendants were here,” Schoettmer said. “What these two defendants do … is that they sue people in order to destroy their lives.”
Schoettmer called his first witness, Ira Tobolowsky’s youngest son, Zach, who described seeing a blog post Aubrey had written about his father, calling him a mortgage fraudster, jail bars superimposed over his picture. Zach called Ira to tell him about the post.
“He was taken aback, to say the least,” Zach testified. “He was very caught off guard.” What most upset Ira about the post was that it listed some corporations he had formed for his clients. To take aim at him was one thing, but maligning his clients was another, Zach said. Ira suspected Aubrey was responsible. (Aubrey had first denied, but later admitted he had written the post about Ira.)
Ira typically would downplay and laugh at anything that happened to him, Zach said. “But this was different to me. I could tell that this truly affected him in a serious way … . The heart of a lawyer’s success is their reputation. That’s all a lawyer has.”
Schoettmer put a picture of the post on an overhead projector in the courtroom, showing it had been viewed more than 800 times. How many times had that post been seen by potential clients thinking of hiring Ira? It was likely that at least a handful of people had viewed the post and decided against hiring him, his family said.
Schoettmer called his second witness, Ira Tobolowsky’s middle son, Michael. Michael took the judge through his father’s work in defending Aubrey’s mother, showing how contentious the litigation had become. Schoettmer put on the screen an affidavit Ira had written before his death, detailing the things Aubrey had said about him. That he was a crooked lawyer, a fraudulent businessman. That he was part of a team of attorneys who represented pedophiles. That he’d had a sexual relationship with the CEO of the Dallas Morning News. Judge Crosby listened from the bench, raising his eyebrows, shaking his head.
After every filing, Michael said, his father had called him. “It was very clear Dad was stressed,” Michael said. “I know he had a lot of emotion surface every single time they accused him of something like this. Dad had dealt with crazy individuals in the past. He had dealt with evil individuals.” But this was different, he testified. “He’d spent so long and so much effort building and creating a name for himself for being ethical, being honest, being trustworthy.” No one had ever attacked him like this before, with such blatant lies, Michael said.
He told the judge that his father had a medical condition that had caused his spine to fuse and caused symptoms similar to arthritis. It was exacerbated by stress. His dad didn’t like people to know this, but during times of stress, Ira needed more help doing basic tasks, like putting on his socks. He began asking his wife to put on his socks during the litigation with Aubrey, became more stooped and began looking tired.
After testifying for about an hour, Michael stepped off the witness stand. Schoettmer made his closing statement. He asked the judge to rule against the defendants and order them to pay $500,000 for mental anguish and damage to Ira’s reputation. “It probably should be more,” Schoettmer said. “But this has never truly been about going to judgment for damages. This was about trying to absolutely stop the conduct that is so atrocious.”
Schoettmer rested. All eyes turned toward Judge Cosby. He sat quietly for a minute or two, looking down. Then he raised his head and spoke. “I think the fear that this family, the Tobolowsky family, has endured over these past many months … the court recognizes what has been happening,” Cosby said. The plaintiff proved his case, Cosby said. He awarded the Tobolowskys $500,000. And then he went further.
In addition to the half a million the family had asked for, the court would grant them an additional $5 million. Hearing the number, Tobolowsky’s eldest, Jonathan, sharply inhaled. He looked at his brothers. Their eyes filled with tears.
The judge looked at Tobolowsky’s widow, Debbie, in the front row. “I’m sorry it’s come this far.”
Debbie Tobolowsky started to weep, as did the other family members in the courtroom. They rose and hugged. As they walked out into the hallway, Debbie looked at her sons. “I wish your father had been here to see this,” she said. “He would be proud.” She turned toward her dead husband’s friend and attorney, Schoettmer, a former linebacker who also was in tears. “Steve, you did an amazing job,” she said. He nodded quietly.
In the year since Ira’s death, the family has had little relief. For that one brief moment on Monday, the legal system that Ira had loved seemed to stand behind him.
“The judge seemed to be sending a message,” Debbie said. “He seemed to be saying that he believed those guys were lying. That he respected Ira. That Ira didn’t deserve this. It felt like the judge was saying, ‘I’m with you. I feel your family’s pain.’”
For the youngest of Ira’s sons, Zach, the verdict felt as if one small painful chapter had come to a close. “For us, this was about finishing a fight for our father,” he said.
“I genuinely lost my breath,” Jonathan said of the verdict. “For the first time since my father’s death, I felt completely happy for a moment.”
The middle son, Michael, who has taken over his father’s law practice, also felt relieved. But he and the rest of the family know their fight is not over. The verdict will be appealed. More motions will be filed. Aubrey and Vodicka claim to be indigent, so there seems little possibility of ever collecting any money. Most important, they still don’t know if police will ever solve their father’s murder case.
Michael walked out of the courthouse into the sunlight, relishing the verdict, but planning to soon return to his father’s law office. There he would take his seat behind his father’s desk and continue working to solve his murder.
When asked for comment over email, Aubrey wrote: “I hope this trial gives the Tobolowsky family the closure they have been so desperate to find.”
