“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.”