When the court was called into session at 9 a.m. on the thirteenth, prospective jurors also peered curiously at her as she strolled in slowly, chin high, to her seat between Allan and Christopher Zaleski. She had lost weight in prison and appeared fine boned and fragile. She was wearing a blue button-down shirt and black slacks, brought for her by a friend, but funds hadn’t been deposited into her temporary Virginia Beach commissary account in time for her to buy makeup and hair products. She looked unkempt, stripped of the armor she normally applied so carefully. A few in the panel recognized her anyway, from following the news, but to most of them she was nobody. Her face was expressionless. Some of the jury panel didn’t know what to make of her: at least one, a retired nurse, looked at the small woman surrounded by the hordes of uniformed men—deputies from both Accomack and Virginia Beach, members of the Virginia State Police—and immediately felt sorry for her.
Once court had been called to order, Judge Tyler began to explain why there were both blue Virginia Beach law enforcement uniforms and brown Accomack uniforms present in the court. “This is a case that arose in Accomack County, on the Eastern Shore,” he said. “I know from having been raised in the western part of Roanoke County as a child and then moving to the shore after I started practicing law that 50 percent of the people in the Commonwealth of Virginia don’t know where the Eastern Shore is. Now, I presume that people in Virginia Beach know that if you go across the Bay Bridge-Tunnel for seventeen miles, when you fall on the land over there, you’re in Northampton County, Virginia, and if you go seventy miles from the Bridge-Tunnel, you’ll come into Maryland. I apologize to all of you who know where the Eastern Shore is; I just have run into so many people who don’t.”
Tyler was a retired judge, who occasionally came back to serve on rotations. He’d been on the bench eighteen years and had, over time, developed an excruciatingly patient way of explaining things that assumed jurors did not know anything, but did not make them feel guilty about it.
“I am going to tell you a story,” he continued, still perfecting his description of the uniqueness of the county. “A friend of mine was a great Virginia Tech advocate. He went to all of their football games. They solicited him to give a donation to Virginia Tech. When the band formed up on the field, the football field in the shape of the Commonwealth of Virginia, they never added the Eastern Shore. So he made them add a little strip of the Eastern Shore of Virginia before he would give them $50,000. So that will give you some idea. The location of this event—Mr. Agar, state the location of this event, please?”
“The town of Melfa,” Gary Agar said, rising halfway from his seat to supply the judge with an answer.
Only after Tyler felt that the atmospherics had been properly and thoroughly set did he pivot again to talking about the case at hand and how he would be selecting jurors for it. From time to time, he remarked on a name that seemed familiar. “Killmon is an Eastern Shore name—do you have any relatives over there?” the judge interrupted one prospective juror’s questioning.
“It is—my grandfather is from there. He met my grandmother on Tangier Island and he carried her off,” the prospective juror said.
“Well, he had to carry her off,” the judge said, “because those people won’t go unless you take them.”
The selection lasted all morning. In the end, the jury consisted of, among others, a nurse, a federal safety compliance officer, a homemaker, a counterintelligence counsel agent, a college student. When it was lunchtime, Tyler remarked that he planned to obey Virginia Beach custom on some court-related things, such as breaking for lunch at 1 p.m. instead of noon the way he usually did. However, there were some things he preferred to do his way. “It’s going to be the Accomack rule on clothing, bailiffs,” he said. “Nobody’s coming in with torn jeans, flip-flops, T-shirts, field clothes, et cetera.”
And it was time for the trial to begin.
“WE HAVE ALL HEARD OF ARSON.”
Gary Agar stood before the newly assembled panel with his graceful hands, and introduced the jury to the charge they would be asked to evaluate. “This arson is one dealing with the burning of a structure, the structure having a value of over $200. It’s not that difficult a statute, and the proof is just this: The Commonwealth has to show that the structure was burned in whole or in part. And that the defendant did that with malice. Malice is just the doing of a wrongful act intentionally, without any cause or excuse.
“The second charge faced by this defendant is that of conspiracy. Conspiracy is where—and let me just read it from the statement of the law: ‘The defendant entered into an agreement with another, and that agreement was to commit arson, and they both intended to commit arson upon their entering into that agreement.’ So it is not a complicated law, but it is exacting. The Commonwealth needs to show this beyond a reasonable doubt. That’s what we have to show—now let me tell you how we’re going to prove it.”
The Commonwealth would begin, Agar continued, by calling as a witness the owner of the property in question. He would then call the troopers who witnessed the fire being lit by a man—a man who ran, “lickety-split” back to a van driven by the defendant, Tonya Bundick. He would call the sheriff’s deputy and the police officer who stopped the van, and the firemen, and the officials who had performed the search of the van, and Scott Wade, the investigator who questioned Bundick, and a man from Verizon Wireless who would tell them technical things about an important call made at 11:35 p.m. on the night the defendant was arrested.
“There will be a lot of evidence here,” he finished. “But I think at the end of this it will be very clear the defendant cannot sit back here in this position of ‘Gee, I just didn’t know what was going on.’ The evidence will show she’s just not in that situation at all.”
Agar returned to his seat, and without a transition, Allan Zaleski rose from his. He moved slowly, almost creakily; there was a vague Columbo quality to him—a man who feigned simplicity while retaining everything. After a brief introduction, he got to the facts: “Charles Smith and Tonya Bundick were lovers. They were not married, but they lived together in the town of Parksley. It was a two-year relationship. My client had two—has two—children, is the single mother of a thirteen-year-old and an eleven-year-old. She met Charles Smith. He was a self-employed man, and he later moved in with Ms. Bundick.” One night the couple was running a few errands, Zaleski said, and this was the night that Charlie got out to light a fire. But Tonya didn’t know anything about it.
“It’s interesting,” Zaleski continued, philosophically. He was in the habit of taking off his eyeglasses, and gesturing with them. “You’ll find that the fire was set with a cigarette lighter, something you can stick in your pocket. Not a can of gasoline anybody could carry, or turpentine or anything like that. You can stick it in your pocket, run out, do what you intend to do. It’s obviously what Charles Smith intended to do. He’s confessed to it.”
In order for Tonya, the purported getaway driver, to be found guilty on arson and conspiracy to commit arson, the Commonwealth would have to prove that Tonya was a driving force in the plot. It wasn’t even enough for her to be aware of the fires—not that he was saying she was—but she had to have “encouraged” Charlie in the crimes. “I think you’ll all conclude that Mr. Agar has failed in the duty of requiring that level of proof,” he said, finishing his opening argument. “Thank you very much.”