If Looks Could Kill (33 page)

Inside the Summit County grand jury room on Monday, October 7, John Zaffino was indicted for the murder of forty-four-year-old Jeff Zack. Zaffino was formally charged with aggravated murder “for allegedly causing Jeff Zack’s death by prior calculation and design.” If convicted, Zaffino faced a possible twenty years to life in prison. On top of that charge, Zaffino faced a separate charge of “murder for allegedly causing the death while committing a felonious assault,” a charge that carried an additional maximum sentence of fifteen years to life.

If John Zaffino was ever going to serve up Cynthia George—who the CAPU detectives were now focused on pursuing—to secure a lighter sentence for himself, time was running out.

What some found rather ridiculous was that Zaffino, who had pleaded not guilty, was being held in the Summit County Jail on a $10 million
cash
bond. Why so much money?

For one, several involved with the prosecution later agreed, the CAPU was afraid for Christine Todaro’s life, not to mention her son and father. The large bond would insure Zaffino sat in jail until he had his day in court, which looked like it was going to take place during the spring of 2003.

Bonnie and Ashton Zack had moved. They couldn’t bear to be in the Stow house any longer. Bonnie needed to start over. Through her lawyer, Frank Pignatelli, Bonnie released a statement to the
Akron Beacon Journal:
“[She] is very relieved that there has been an arrest and law enforcement has done an excellent job in an extremely difficult and complex case.”

In December, Dave Whiddon, rather anxious to hear from Herbert Joe’s Texas laboratory he had sent the ominous voice mail message to, along with the voice samples from Zaffino and Seth, got his answer. It had been months and, he said later, he had almost forgotten about it. Still, that one telephone message could help seal the APD’s case against Zaffino.

In his detailed twenty-page report, Herbert Joe believed that the voice on the tape was indeed John Zaffino’s.

As the CAPU began interviewing people connected to John Zaffino, some had rather bizarre stories to tell. One woman, whom Zaffino was buying his anodizing products from, said he would often tell “inappropriate” stories about his life that were, at times, appalling. In one instance, she said, Zaffino told her he had tied a string around the genitals of his cat and was waiting for “them to fall off.” He thought it was funny, she claimed, that the cat had suffered so horribly. This same woman also said Zaffino loved to “brag” about being with Cynthia George. “Married women are the best,” he’d say jarringly.

Through Christmas and the New Year holiday season, the CAPU kept building its case, while Zaffino consulted with his lawyer, Larry Whitney, trying the best he could to come up with a plausible defense. Whitney knew, of course, the CAPU’s main witness, Christine Todaro, was going to be devastating to his case; yet, as Zaffino began telling it, Christine had some skeletons herself. And when the time came, Whitney was going to pull those old bones out of the closet and expose them to the jury, discrediting Christine’s integrity.

At what first looked like a trial slated for the spring of 2003, by February, the
State of Ohio
v.
John Zaffino
was under way. As preliminary hearings and voir dire concluded by February 24, with a jury of twelve, plus two alternates already chosen, the Honorable James Murphy, the judge, slapped his gavel and adjourned until opening statements, which were set to begin on February 26.

The only setback thus far, at least from Dave Whiddon’s point of view, was that Judge Murphy ruled the results of the voice mail message test Herbert Joe had conducted, in which he believed that the voice threatening Jeff Zack was John Zaffino’s, would not be permissible. According to Whiddon, that decision sent him into a rage. He had worked hard at putting together the evidence. To have it thrown out—even though Chief Assistant Prosecutor Mike Carroll, who had taken over the case, insisted it wouldn’t matter—was devastating. Whiddon couldn’t believe it.

Larry Whitney filed a motion to suppress the testimony of Herbert Joe, writing that Joe’s forensic testing on the tapes was considered “junk science”—a tired, overused term if there ever was one in today’s courtrooms. Joe was a nationally recognized expert. He had testified in dozens of cases and was willing to back up his findings with documented evidence, not just an opinion. “I’m happy to fly in and explain it all to the judge,” Joe had told Whiddon.

A suppression hearing was called. Whiddon wanted to set up Herbert Joe and have him ready to testify. But others involved in the prosecution didn’t think they’d need Joe for the suppression hearing.

“In fairness to [those who didn’t think Herbert Joe needed to be there],” Whiddon recalled, “no one thought Judge Murphy would react the way he did.”

But still, Whiddon insisted that it wouldn’t hurt to fly Joe in and at least have him ready in case Judge Murphy wanted to hear from him.

The problem was that no one had made plans with Joe. So when the time came and Murphy, sure enough, wanted him in court to explain the science behind his findings, Joe was off in Australia studying Aboriginal language and couldn’t make it back in time.

Prosecutor Mike Carroll did his best to explain to the judge that Joe would be available for trial, but Murphy wasn’t hearing any of it.

Whiddon was upset, but Carroll insisted that it wasn’t the end of the case. They could get the voice mail message in another way and make a connection to Zaffino through his ex-wife Nancy Bonadio, Russell Forrest and Christine Todaro, who had spoken to Zaffino over the telephone and could clearly identify his voice. Then jurors could take the message themselves, play it and make up their own minds.

“What else could I do?” Whiddon explained later. “In the end, I knew it would all work out and I was upset with myself for making such a big deal out of it.”

Standing a thin six feet four inches, Mike Carroll has an unassuming way about him—a Clark Kent type of demeanor that boded well for his job. He was an evidence man all the way and didn’t come across as some sort of overbearing prosecutor who knew more than anyone else, as some do. Carroll wanted to see a case on paper before he went after it with a vengeance in court. The Zaffino case was going to be a challenge. Carroll had no forensic evidence and no eyewitness testimony. What he had, however, was a plethora of circumstances that pointed to John Zaffino as the murderer. A major part of Carroll’s case was set to hinge upon telephone records, inch upon inch of stacked records sitting in Carroll’s corner office, located in the same building as the APD. At one point, Carroll and Whiddon spent days going through the records to see if they could put together a paper trail explaining how and when Zaffino and Cynthia George spoke. Carroll knew that if he was going to eventually bring a case of conspiracy against Cynthia George—although, Zaffino so far hadn’t mentioned that she was the least bit involved—he was going to have to expose part of that alleged culpability during Zaffino’s trial.

On top of that, Carroll admitted to me that he didn’t have the most sympathetic victim to present to the jury. “It was going to be hard in respect to Jeff Zack.”

Even so, on the morning of Wednesday, February 26, 2003, after Judge Murphy read the jury its instructions, Carroll, with his rosy red complexion, salt-and-pepper hair, stood up from his seat and began his opening statement as the most high-profile trial to hit Akron in some twenty years commenced under the umbra of a throng of media and courtroom watchers.

For Mike Carroll, the case against John Zaffino came down to one main point—and he wasted little time getting it across to the jury. “You’re going to find out from the evidence in this case,” he said in his soft, comforting tenor, “that Cindy George had a problem—and that problem was Jeff Zack.” After briefly pausing, he added, “The solution to that problem”—he pointed now at Zaffino, who was dressed in slacks and a sweater obviously too small for his protruding belly—“was John Zaffino.”

It was an eye-opening line, one that clearly spelled out for the jury how, in Mike Carroll’s opinion, this incredible murder case, which took the CAPU over a year to solve, boiled down to a triangle of deceit, adultery and, of course, cold-blooded murder.

Finally, “The reason we’re here,” Carroll said sternly, without reserve, “the reason Jeff Zack was murdered, surrounds Cindy George and the affair she was having with these two men.”

The one thing, Mike Carroll told me later, you never want to do, is make your opening statement too long so it lulls the jury into a deep, comforting coma, where they begin to hear everything in one blur, thus forgetting the main position of your argument. For Mike Carroll, it was simple: Cynthia George wanted to get rid of Jeff Zack because he wouldn’t leave her alone. Jeff Zack, Whiddon and Carroll speculated, might have even threatened to take Ruby—their daughter—away from Cynthia; so Cynthia, who had already found herself a good, solid brute of a man, asked him to take care of her problem.

But John Zaffino, on the other hand, had never played into the prosecution’s hand: he, in fact, was saying that he’d had nothing whatsoever to do with Zack’s murder, or that it was Cynthia George who had asked him to do it. And this was the only part of the state’s argument Carroll did not address during his opening: Why hadn’t Zaffino turned on his lover and fingered Cynthia for the mastermind behind the crime, if she had been involved? Why not give up the architect and cut a deal? What did Zaffino have to lose at this point?

Carroll spent an ample amount of time laying out his case, step by step, then concluded by saying, “You will be firmly convinced that based on this evidence and it will prove beyond a reasonable doubt that John Zaffino…is the man who rode that motorcycle to BJ’s…[and] shoots Jeff Zack before he even has a chance to get out of that Explorer to pump any gas. Based on the evidence, John Zaffino is guilty of aggravated murder beyond a reasonable doubt.”

The jury didn’t flinch. It was a quick opening statement, devoid of the rigorous detail some attorneys like to get caught up in.

But now, it was Larry Whitney’s turn, the one man who could save Zaffino from a life behind bars. Whitney, a middle-aged man with stringy gray hair like a mad professor’s, could be as caustic as a political strategist when the situation warranted it. Here, he was defending a man who had steadfastly denied his guilt. Whitney was determined to prove to the jury that the prosecution was going to have to come up with more than circumstantial evidence to convict his client. After all, no one had identified Zaffino. Not one person could walk into the courtroom and call him the shooter. Nor was there any forensic evidence linking him to the scene or any part of the crime. Sleeping with Cynthia George wasn’t a crime. Neither was hating Jeff Zack or getting into bar fights. “All of us have done our homework here,” Whitney said after an opening few lines introducing himself. He spoke fluidly, clearly, nonthreateningly. He moved like a candidate running for office, using his hands when the moment struck him. “We anticipate what a witness will say because we’ve talked to those witnesses. We know what the evidence is in this case. Everything you’ve been told, I’ve known. Everything that Mr. Carroll has told you, we know. And everything probably that I tell you right now, he knows.”

For the next several minutes, Whitney told the story of Jeff Zack’s life and how it ended on June 16, 2001. Then he went into Zaffino’s alibi, before ripping apart Christine Todaro’s undercover work, saying she tried to get Zaffino to admit to killing Zack, but the problem with her testimony and countless hours of tape recordings the jury was about to hear will be that Zaffino never did. And that was the bottom line: Zaffino never admitted killing Jeff Zack. “We’re not going to argue with the state that [Zaffino] knows Cindy George. What we argue about is whether or not his knowing Cindy George, his buying a motorcycle, amounts to his being a murderer. Because we think the evidence will not convince you beyond a reasonable doubt that these things add up to murder.”

When he finished, Whitney sat down. He didn’t look so good. He moved slowly near the end of his opening. Several courtroom watchers later said he appeared sickly, pasty, white. He seemed nervous, anxious and, at the same time, withdrawn.

Something was wrong.

During the first day of testimony, through a multitude of witnesses, Mike Carroll proved several things to the jury. For one, Carroll showed how, in early June 2001, John Zaffino purchased a .357 Magnum Smith & Wesson revolver, and that the bullet used to kill Jeff Zack was from a .357. On June 13, Zaffino called the Zack home and left that now-infamous threatening message, Carroll suggested, as several witnesses identified Zaffino as the man behind the voice.

Powerful evidence—that is, if jurors bought it.

Through another round of witnesses, Carroll then explained that three days after John Zaffino left that threatening telephone message, a Ninja-style motorcycle was seen circling the parking lot near BJ’s minutes before noon. Carroll insinuated, with each witness, that the person on the motorcycle was in fact John Zaffino. How? He and Dave Whiddon had gone through scores of telephone records. According to them, that nauseating work had paid off: the records showed how John Zaffino spoke to Cynthia George from 11:49 to 11:57
A.M
. on the day Jeff Zack was murdered—but didn’t speak to her again until 12:29
P.M
., which would have given him just enough time to kill Jeff Zack, speed away and allegedly let Cynthia know the deed was done. Carroll put up poster boards with the cell phone records blown up and highlighted all the telephone calls between the two lovers.

It was powerful evidence—but all of it circumstantial. There was nothing to prove what Zaffino and Cynthia had talked about, only that they had called each other.

Larry Whitney answered Carroll’s attack by saying that during the normal course of a day, Zaffino and Cynthia talked on the telephone like teenagers, generally during those same times. He provided records to show that Zaffino and Cynthia had spoken on the telephone for days and days before the murder during those same time frames. Just because they spoke on
that
particular day, at
those
particular times, it didn’t mean they were planning or discussing Jeff Zack’s murder, Whitney implied through his questioning of witnesses. They could have, after all, been planning a wild night together.

How does one make the leap, Whitney wondered, from a telephone call to murder—without knowing what was discussed?