by Monica Hesse
And then she did let him out, and she did pick him up, and the police arrested them, she explained again to Agar. And then she went to jail and was put in solitary confinement and for several weeks she had no idea what Charlie was saying about her or anything else.
“Had you been trying to train him?” Agar asked one final time.
“No. I have not been trying to train him.”
“Well, you had been trying to assure him. That was the nature of your relationship, wasn’t it?”
“If I could have trained him,” she said, “I would have trained him two years ago and we wouldn’t even be sitting here.”
She confirmed that they hadn’t been sexually intimate for a year and a half prior to their arrest.
“Wasn’t it normal that in difficult times in your relationship, perhaps something would occur that would improve things—relieve stress, so to speak?” Agar asked.
“What are you saying?” she asked.
“Like lighting a fire?”
“Not that I’m aware of.”
One last, desperate attempt: “Wasn’t lighting a fire a means for you and he to enrich your relationship?”
She looked flabbergasted. “On my part, that’s news to me.”
THE DEFENSE HAD CITED several potential witnesses they planned to call, but Tonya turned out to be the only one.
At noon on the second day, Judge Tyler told the jury that all of the evidence was finished. But even so, it was important that they not discuss the case among themselves until they had heard final arguments and received specific instructions, which would happen after lunch, at 2 p.m. “That’s the protocol here in Virginia Beach. While we are rather more flexible on the Eastern Shore, there are different reasons why the protocol is different here, and they’re very good reasons.” It was 12:20, and he called a recess for lunch.
On the one hand, the Zaleskis thought they had put up a compelling case for Tonya’s innocence. Why would the jury believe Charlie? He had been on drugs, and he had been in prison, and he was a firefighter with fire know-how, and he did have the most to gain from testifying against Tonya. On the other hand, there were the phone records, which affirmed that he and Tonya had exchanged calls exactly at the time of the fire, at a location near the fire. And there was the fact that the van, driven by Tonya, had been spotted letting him out, and spotted picking him back up.
Tonya had pleaded not guilty at the beginning of the trial the morning before. Now, the jury had sat through her testimony, Charlie’s, and the findings of a cell phone expert and a raft of law enforcement and fire officials, and it was time for the defense to decide whether that plea had been wise. In the Commonwealth of Virginia, juries were responsible for not only determining guilt or innocence but also for offering sentencing recommendations, which, in Allan Zaleski’s experience, judges tended to ratify. But the sentences of juries were often harsher than what a judge would have determined—lacking judicial experience, juries might think that if someone was guilty, they also deserved the maximum punishment.
As soon as the jury left for deliberation, it would be too late for the defense team to do anything for Tonya except hope. But at the moment, it was still possible for Tonya to change her plea to guilty, which would put her sentencing back in the hands of Judge Tyler. Now, in a small meeting room in the Virginia Beach Courthouse, that’s what the attorneys began suggesting she should do. The defense team had misgivings about the trial’s outcome. It wasn’t that Tonya had done badly on the stand; she hadn’t done badly at all. The trouble was that Charlie had done particularly well. Tonya’s defense team worried that the jury had believed him for the same reason that Gary Agar had believed him, way back when he’d watched the confession tapes in his office the night after their arrest: Charlie must be telling the truth because he came across as a person lacking the creative faculties with which to lie. It was the intangible Charlie-ness of Charlie. (Zaleski’s gut feeling wasn’t wrong. In the gallery, among the journalists and the other spectators, there was a prevailing sense that mostly Charlie seemed honest because Charlie seemed dumb.)
If Tonya could bring herself to change her plea, she wouldn’t even have to admit guilt in order to do so. Virginia allowed an Alford plea—a plea that maintains factual innocence, but which acknowledges that the state has enough evidence to result in a likely conviction. In the plea’s most famous pop culture moment, the men known as the West Memphis Three—a trio of teenagers who were convicted of killing three small boys based on evidence that amounted to Satanic panic and a coerced confession—agreed to submit an Alford plea upon their prison releases. Historically, the plea was rooted in the case of a man named Henry Alford who, though he wanted to plead not guilty of murder, feared that a jury trial would find him guilty and result in his execution (the death penalty was the usual penalty for murder in his state, and there was considerable evidence against him). The have-it-both-ways plea allowed him to maintain his innocence and get a life sentence instead of execution, and it allowed the state to spare the expense of a trial. Three states didn’t allow the Alford plea at all, and some judges looked on it with disdain, preferring criminals who were contrite rather than those who tried to maneuver the legal system but keep their own innocence. So it wasn’t without risk. But with the damning cell phone evidence and Charlie’s confession, it seemed like the best option.
At about 12:45, just twenty minutes after the judge had recessed and while some of the spectators were still across the street picking up lunch at the smoothie bar, Tyler called the court back to order. “The defendant is present with her counsel,” he said to a half-empty room. “The Commonwealth’s attorney is present. The jury is not in the courtroom.” He nodded toward the defense table, where Allan and Christopher Zaleski flanked Tonya as they had from the beginning of the trial. “Mr. Zaleski.”
Allan Zaleski rose. “Yes, Your Honor. The defendant would ask for the court’s leave to change her plea at this point.”
“All right, sir. She will be given leave to change her plea,” the judge said.
“If the clerk would read the charges, she’s ready to plead.”
The clerk stood and read the first charge, the one for conspiracy to commit arson. “On or about April 1st, 2013, in the County of Accomack, Tonya Susan Bundick did unlawfully and feloniously conspire, confederate or combine with another to maliciously burn or destroy by the use of explosive, in whole or in part, a building or structure having a value of over $200. For this offense, you’re now to be tried. Are you guilty or not guilty?”
“Guilty,” Tonya said.
The clerk read the second charge, the one for the actual burning. “Guilty,” Tonya said. Pleading guilty, even an Alford plea, meant that Tonya could be sentenced for up to ten years in prison for each count, twenty years total. It meant that she waived her rights against self-incrimination and the right to defend herself, and that eventually she might be deprived “of her privilege to drive or operate a motor vehicle as a result of conviction.”
She agreed to all of it.
“Ms. Bundick, if you’ll please stand,” he instructed, and she did. “On your pleas and on the evidence I’ve heard in the courtroom in the last two days, the court finds you guilty as charged.”
Judge Tyler told the bailiff that he wanted to bring the jury back in to explain to them what had happened, but that Tonya didn’t have to be in the room for that. The jury filed back in, looking confused as Tyler explained: Their services would no longer be needed, which he expected they would receive with “mixed emotions.” It was a little unusual, he conceded in his teacherly way, but not so unusual as to be cause for alarm, and the jury should certainly feel confident that the legal system had unspooled in a proper manner. He asked if any of the jurors had any questions.
“Why did she change her plea?” one wanted to know. Tyler responded that it wasn’t for him to say.
“What sentence will she get?” asked another juror, and Tyler said that, while he would eventually be the on
e to make that decision, he wouldn’t be making it for some time.
“And how will we know what happens?” the same juror followed up.
“You will probably read about it in the newspaper,” Tyler told her. “I’m almost certain you will.”
CHAPTER 26
“MORAL TURPITUDE”
THE SECOND TRIAL, SPECTATORS BELIEVED, would be a bellwether for all of the other trials. The first one had been the Commonwealth’s strongest case against Tonya: They had Charlie’s testimony and the phone records, but most importantly, they had eyewitnesses watching Tonya drop off and pick up the confessed arsonist. The count at the second trial, “count fifty-two” as it came to be known, was more nebulous. Count fifty-two, at an abandoned migrant camp, had happened several weeks before Charlie and Tonya were caught, so there were no eyewitness accounts of her presence. If Tonya was found not guilty here, she would likely press on and keep trying her luck with the jury. If she was found guilty, on the other hand, then she might think about pleading out to the other charges. Gary Agar and Allan Zaleski were in a game of legal chicken.
The second trial looked much the same as the first. More cell phone experts, testifying that there had been calls placed between the two phones at the time of the fire. More Charlie, looking melancholy on the stand. More Accomack sheriff’s deputies, hanging out in the hallway, complaining about Virginia Beach traffic.
Tonya’s defense produced a new witness, a man named William Ashbrook, who had been Charlie’s cell mate in jail. Ashbrook testified that Charlie’d told him about setting the fires, all by himself and without Tonya’s help, by riding to and from the sites on his stepson’s bicycle. Gary Agar responded by putting a giant county map on an easel and pointing out that the fire in question, set at an old labor camp, was seventeen miles from Charlie and Tonya’s house. Charlie, he scoffed, had pedaled there and back, thirty-four miles total, at night, down unlit roads, on a child’s bicycle?
Tonya was inscrutable, again. It was tedious, again.
It was notable only for the following reason: in addition to William Ashbrook, Tonya’s defense called one additional witness who had not been at the first trial.
His name was Frank Dickerson. Allan Zaleski asked him to the stand as a character witness, for Tonya. He was identified as a minister. Dickerson was in his early fifties with a sandy goatee and a peacefulness to him associated with a man of the cloth, although Dickerson today was wearing a denim shirt. He had been ordained by the United Christian Church of America out of Tennessee, he testified. He’d lived on the Eastern Shore for twenty-nine years, and he knew a number of people who lived there including Tonya Bundick. The defense did not ask how he knew her; people in the gallery assumed she must have been a member of his congregation. Dickerson told the jury that Tonya’s reputation in the community was that she “was brutally honest.” As for whether she was the kind of person who could commit arson: “She’s not that kind of person. [It’s] not in her nature,” he said.
Gary Agar said that he had only a few questions for this witness. First, he wondered, was it possible that Frank Dickerson had ever gone by “Frasure Francis Dickerson Jr.”? It was, Dickerson acknowledged, although it was rare for anyone to call him Frasure these days. Next, Agar wondered whether Dickerson had ever been convicted of a crime “of moral turpitude? Of lying, cheating, or stealing?” Dickerson said he had not, but Agar pressed him. What about a time in 1998 that a Frasure Francis Dickerson had been convicted of a misdemeanor larceny?
“I thought that was changed to something else,” Dickerson responded. “Thrown out.” He went on to explain: “Before I was a minister, I had a bad drug problem and I had a charge against me for taking a clock off of the wall in our home where my wife and I lived and selling it to an antique dealer.” That was more than a decade ago, though. He didn’t think it would still be on his record.
“How often do you visit [Tonya] in jail?” Agar asked.
“Almost every week.”
“Almost every week,” Agar repeated. “Do you call her?”
“We talk on the phone.”
“How many times a week do you talk to her on the phone?”
“Three or four times a week.”
“You pay for the calls that she makes to you?”
“Yes, sir.”
“And have you given presents to her children?”
“Yes, sir.”
“You’re basically her—like her boyfriend then, aren’t you?”
The spectators in the courtroom rustled in their seats at the phrase, but if Dickerson was thrown off by the question, he didn’t show it. “Yes, sir,” he said. He was basically like her boyfriend, as a matter-of-fact.
“And you’ve come here today as her character witness?” Agar asked theatrically. “But you didn’t tell the jury you were her boyfriend when you came here to tell them what the community thought of her, did you?”
“Nobody asked me until now,” Dickerson said.
The cross-examination of the Reverend didn’t last much longer than that. It had accomplished two things. It had stipulated that the character witness had previously undisclosed emotional involvement. It didn’t look good for Tonya that of all the people in the county, the only one they’d brought in to testify that she was a good person was one who was in love with her. The other thing it accomplished, of course, was publicly ending the love story between Charlie Smith and Tonya Bundick.
“Bundick Has a New Boyfriend,” read the headline the next morning on the news site Delmarvanow.com. “Bundick Trial Begins, Has New Relationship,” read another headline.
Charlie and Tonya wouldn’t be getting married in a “November Rain”-themed ceremony, the reception at Shuckers with a guest list in the hundreds and hired security to keep out the riffraff. They wouldn’t be getting married in a jailhouse, using rings procured by Charlie’s sister, vowing to never testify against each other. Tonya was in love with somebody else.
AFTER BREAKING FOR LUNCH and deliberating for less than an hour, the jury returned with a verdict: Tonya was guilty. For that single charge, they recommended a sentence of three-and-a-half years.
CHAPTER 27
WHAT HAPPENED NEXT
SHUCKERS—the site of Charlie and Tonya’s meeting and romance and engagement—it closed. I couldn’t ever figure out exactly why. A couple of folks on Facebook referenced an undesirable element, like maybe there had been one too many fights, and management thought the bar needed a fresh start. The owner announced he’d be renovating and reopening the restaurant under a different name. New ceiling, new signs, new bar, new menu. As it turned out, the last big hurrah that Shuckers would ever have under its original name happened on Halloween 2012, twelve days before the arsons began. Charlie had put on a long black wig, and Tonya had worn plastic vampire fangs, and they came to the bar to dance to classic rock played by a Virginia Beach cover band, along with all the other people dressed as vampires, pimps, geisha girls, and sexy witches at the Eastern Shore’s Studio 54.
When the remodeling was finished, the new place was called Salty Dog Country Bar and Grill. It was less booty-poppin’ and more boots-and-sawdust: the logo was a Labrador retriever wearing a cowboy hat and a red bandana. Then, while Tonya’s court proceedings dragged on, Salty Dog closed down, too. It reopened as The Fair Grounds, a family-friendly, Chuck E. Cheese-y restaurant with corn hole tournaments and arcade games in the back. By the time I first visited the address, the building was in that phase; I ordered a plate of fettucine Alfredo in the booth that, someone told me, used to be the location of the stage that women like Tonya danced on. Even though the building had been renovated and the roof had been repainted a bright blue instead of gray, there were still auras of Salty Dog under The Fair Grounds, and Shuckers underneath everything. A palimpsest of Eastern Shore history, on a slab of a parking lot with weeds sprouting through fractures in the concrete.
LOVE IS A WEIRD ACT. An optimistic delusion. A leap of faith and foolishness. Sometimes when it
is tested, imperfections that were there from the beginning, lurking deep, can begin to work their way to the surface. Even two people who love each other deeply will always be two people, two souls. You can’t ever completely get in someone else’s head, or in someone else’s heart. It is the greatest tragedy and the greatest beauty of a relationship: that at some level, the person you are closest to will always be a total friggin’ mystery. Maybe the real mystery is why we ever do it at all. It must be something incredible.
Charlie and Tonya together had felt, to Charlie at least, like an epic love story. But by the end it was a mess, and maybe it always had been. Did lighting fires save a struggling relationship, at least for a time? Or did those fires crush a relationship that might have otherwise had a chance, by sweeping two people up in something that was crazy and that neither one of them would have done alone?
The trouble with being the type of person who would do anything for love was that you would do anything for love. If Tonya had wanted to rob banks, Charlie might have bought a ski mask and a handgun; if Tonya had wanted to pickpocket strangers, he might have worked on his light-fingers techniques. Tonya, according to Charlie’s version of things, wanted to spray paint a bunch of buildings, and later she wanted to light a bunch more on fire, so that’s what they did.
And that’s assuming Charlie was the one telling the truth. This was a love that had resulted in one of two scenarios: Either Charlie loved Tonya so much that he was willing to light a string of fires just to make her happy, or he loved her too much to allow her to go free while he went to prison. Either Tonya had trusted Charlie enough that she never suspected Charlie was lighting the fires while she was innocently at home, or she trusted him enough to believe he wouldn’t tattle on her—and now he’d talked and she hadn’t, and she’d lost.