Now Zaleski was seventy-two years old and made his own hours out of a Norfolk law firm that also employed his son, Christopher. Allan also kept a small office for his occasional work on the Eastern Shore. The court system was a tricky thing over there, because so many attorneys had conflicts of interest due to prior cases. For high-profile matters, a judge would occasionally recruit a defense attorney from the mainland. Over the years, Zaleski had become one of these attorneys. He’d defended, for example, the drunk driver who killed an off-duty state trooper and his young son as they drove together to a Harry Potter book release party. No lawyer on the shore wanted that case. Zaleski took it, and the driver went to jail for ten years and then got out and crashed another car in another DUI.
Zaleski wasn’t a true believer, not the type to think all his clients were innocent. What mattered was what could be proved in a court of law. And that’s what he asked clients. Not “Did you do it?” but “Can they prove you did it?” He hadn’t been Tonya’s original assigned attorney, but the original lawyer had recused herself due to a conflict of interest. Judge Tyler called Zaleski to ask if he would take over.
The duration between Tonya’s initial arrest and her first trial was eight months. Commonwealth’s attorney Gary Agar had used every day of it strategizing how to build his case. The fact that Charlie had agreed to testify was important; what Agar didn’t know is whether Charlie’s testimony would be sufficient. He was, after all, a convicted felon. The jury might hold that against him, just like they might hold against him the fact that he was Tonya’s spurned lover and not exactly an unbiased party. Agar needed corroboration. But he didn’t have any fingerprints or DNA evidence. He didn’t have any other witnesses. What he had besides Charlie was a lot of “riding around.”
And, he had phone calls. State troopers Johnson and Burke, who caught Charlie, thought they had seen him communicating on the phone as he ran away from the fire. Charlie himself had said that Tonya would typically drop him off to light a fire, and that he would call her cell phone when he was ready to be picked up. If that was true, there should be records of those calls. Agar had never employed cell-phone tower evidence before, but he was familiar with the general concept: When a cell phone was used, it connected to the nearest available tower. Each tower’s coverage was divided into three sectors, facing in three different directions. Placing a cell phone within a certain sector gave the information even more specificity.
Agar decided three things were necessary in order for the cell records to be useful. First, he needed to look for nights in which the cell phones had called each other around the same time that a fire had been reported. Second, during the times of the calls, the two phones both had to be located in the same sector of the same cell phone tower, near the fire, which would aid in supporting the idea that Tonya was idling in the car nearby, waiting for a pickup call. And third, the calls couldn’t take place within the same sector as Tonya and Charlie’s house on Matthews Road—if it did, the defense could argue that Tonya had been talking to Charlie while she was at home and while he was, unbeknownst to her, out lighting a fire.
Agar found several calls that fit those criteria, including on the night Charlie and Tonya were caught. To his list of potential witnesses, Agar added a Verizon Wireless expert.
While Agar’s office combed through phone records looking for the best evidence against Tonya, the Zaleski team—Allan and son Christopher, who would be joining his father for Tonya’s defense—focused on negotiating how the charges against their client would be tried. If all sixty-two counts were packed into one trial, Allan worried the jury would get exhausted. They would stop paying attention to the evidence, or lack thereof, and just assume that anyone brought forth on that many charges must be guilty. So he wanted lots of trials. “Each case, fresh and new,” he explained to the Virginian Pilot newspaper in an interview. The prosecution wanted the opposite. Multiple trials would stretch county resources and further anger an already agitated community. Besides, the fires were part of a “common plan,” Agar had argued to Judge Tyler at a hearing on the subject, which meant they should be part of a common trial. “All were at night,” he said. “All buildings were unoccupied, no accelerant was used, all were on secondary roadways.” The judge had sided with the Zaleskis, ruling that the trials could be split up, one per count if necessary.
Sixty-two trials. Even if they moved along at three per year, a quick clip, there was a good chance that by the time the legal proceedings were over, many of the main players would be dead.
Given the judge’s ruling, Agar’s next best hope was that Tonya would be found guilty in her early trials. In that situation, the defense might decide to plead guilty for all the other charges, in exchange for a packaged sentence. Zaleski, on the other hand, hoped Tonya would be found not guilty and the other charges might eventually be dropped. For a felony count of arson of an abandoned structure, the minimum penalty sentencing was two years per count, and the maximum was ten years. If the trials didn’t end soon, Tonya could live out the rest of her days in prison.
THE FIRST TRIAL took place on January 13, 2014. It was the first trial but the final fire, the one that got Tonya and Charlie arrested on Airport Road.
In contrast to Accomack’s old brick courthouse, the Virginia Beach court complex was modern, with escalators and glass walls, and bland courtrooms that looked like they’d been outfitted with an Office Depot catalog. In the spectator pews, the handful of Accomack residents who’d gotten the day off of work and come to the trial out of curiosity were clustered behind the desk reserved for the Commonwealth’s attorney. The journalists, mostly local media and television affiliates who set up cameras in the back, clustered on the side of the defense, eager for a glimpse at Tonya.