If Looks Could Kill (34 page)

During the first day of testimony, the
State of Ohio
v.
John Zaffino
was full of sordid details alleging an adulterous triangle between Jeff Zack, Cynthia George and John Zaffino—one that ended, so claimed the prosecution, in murder. Many expected the second day of trial to be even more tawdry, with additional witnesses coming forward to paint a picture of Cynthia George’s love life as if it were a subplot in a steamy romance novel. But the second day of testimony would not commence for another week, as even more drama was injected into the case.

After the first day of testimony concluded, Larry Whitney went home and lay down on his couch. He still hadn’t felt quite right. As the night wore on, Whitney became extremely disoriented, and after being rushed to the hospital, he was told he had suffered a mild heart attack.

With that, Summit County judge James Murphy halted the trial and sent jurors home on Thursday morning. Fifty-four-year-old Whitney, still being treated at Akron General Medical Center, was expected to remain in the hospital for several more days.

Late in the morning, it was reported that Whitney had called Judge Murphy’s office from his hospital room. “I’ll be ready to return [next week],” Whitney promised. “I don’t want a mistrial declared.”

When the trial resumed the following week, Mike Carroll put Nancy Bonadio on the stand, her fiancé Russell Forrest and a long list of supplementary witnesses. Bonadio and Forrest explained how Zaffino drove the bike to Pennsylvania in the middle of the night less than a week after the murder, and its fluorescent green colors had been covered up with duct tape. It was riveting testimony, and spoke to Zaffino’s character and mind-set near the time of the Zack murder. He was scared. He was doing things a guilty man would do. He wanted to get rid of a motorcycle. He had avoided paying child support in the past. He had never given Nancy Bonadio a damn red cent without getting something for himself, she claimed. But on that night, John Zaffino didn’t care; he wanted to be rid of an alleged connection to the crime and handed his ex-wife the keys to a five-thousand-dollar motorcycle without asking for anything in return.

Two witnesses later, the star of the trial walked into the room. Forty-eight-year-old mother of seven, wife of sixty-three-year-old Tangier owner Ed George, Cynthia George, sauntered into the room like a celebrity. Cynthia wasn’t the Mrs. Ohio America third runner-up she had once been; the past year had taken its toll on her. She appeared thin and frail, as if she had spent many a night agonizing over what had become of her existence. Cynthia could have had the life of a queen—castle and all—but she had given it all up to bed down with two men—and now she was being asked to expose that secret life in public.

Zaffino stared Cynthia down, cracking a devilish smirk, perhaps knowing what was to happen when she spoke. It was March 6, 2003, almost two years since they’d first met.

Carroll went through a series of nondescript, pertinent questions regarding where Cynthia lived and whom she was married to. Cynthia answered tersely: “Yes” and “no,” without adding any detail.

When Carroll asked Cynthia how many children she had, not a minute into his questioning, Cynthia asked through her attorney that the jury be removed from the courtroom.

With the jury gone, Cynthia’s attorney stood. “Your Honor,” he said, “my client contends to assert her Fifth Amendment rights at this time to any further questions with regard to this matter.”

“Mrs. George,” Judge Murphy asked, “you’ve consulted with your counsel or counsels, have you not?”

“Yes, I have.” She seemed content. Unbreakable.

The judge then excused Cynthia and asked Mike Carroll to call his next witness.

Elayne Zack, Jeff’s mother, Bonnie Zack, his wife, Detective Bertina King and Cynthia and Ed’s housekeeper, Mary Ann Brewer, filed in next. Each gave the jury a well-rounded view of the case from their perspective. Nothing groundbreaking came out of the testimony, but Mary Ann Brewer set the stage for Carroll’s next witness, Ed George.

Ed answered several of Carroll’s questions regarding his restaurant and how he had called Paul Callahan a few weeks before Jeff Zack’s murder to say he was being harassed. But other than that, Ed had nothing of substance to add. Carroll knew he wasn’t going to be much help, but the fact that Ed was on the witness stand answering questions was important in and of itself. His presence alone, Carroll told me later, showed the jury how serious the case against Zaffino was—that a man of Ed’s status and wealth had been dragged into court to sit and face his wife’s alleged lover.

Uncomfortable couldn’t come close to describing the look on Ed’s face as he sat in front of John Zaffino.

When Whitney had his opportunity to question Ed, he asked him if he had hired Zaffino to murder Jeff Zack.

“I don’t even know John Zaffino,” Ed said firmly.

On Friday morning, March 7, Mike Carroll called perhaps his most important witness, Christine Todaro. Christine was terrified to sit in front of her ex-husband and talk about how she’d recorded her conversations with him, but she was determined to see the case through. Zaffino had put the fear of bodily injury into Christine for years; he wasn’t going to do it anymore. On this day, she was taking back her life.

After having her describe how she met Zaffino and when they married, Carroll began a series of questions that would bring the trial its most powerful testimony thus far. “All right, then, let me ask you a few specific things,” Carroll said, looking down at his notes. “Did he (Zaffino) talk to you about some incidents that had occurred with another man…?”

“Yes.” Christine shifted a bit in her chair, but appeared calm, cool and ready to tell the jury what she knew.

“Tell me about that.”

“He came over [to] my house…and told me that he had gotten into a fight with a guy, and he never said his name or whatever…and he basically said he, you know, beat the shit out of him in front of his posse, or people…. And he wanted to warn me about the guy to make sure that this guy wasn’t around. He described him to me and, you know, wanted me to make sure that I made sure that he was not after me or, you know, around me.”

“And is there an explanation of why that warning was necessary—why he would be around you?”

“I think he said the guy had made a threat about me….”

Carroll paused and shook his head. He knew, of course, where the conversation was headed. Then, “And you said he described this fellow?”

Christine didn’t hesitate. “Yes!” How could she forget? It was such a bizarre description.

“How did he describe him?”

“White-haired Israeli.”

Christine went on to explain how the conversation came up and how she figured out, after seeing Jeff Zack’s photograph in the newspaper, that Zaffino was talking about the guy killed at BJ’s by someone on a motorcycle.

From there, she went on to explain how she began to wear a wire for the CAPU and recorded her conversations with Zaffino. Carroll played several of the tapes for the jury. Then Christine told the jury about Zaffino’s gun collection and how she had seen a semiautomatic pistol in his car one day.

Near the end of what amounted to an hour of questions and answers, Carroll asked Christine about State’s Exhibit #58, the microcassette tape of that threatening voice mail message left on Jeff Zack’s answering machine. “Do you remember any of the words that were on [the tape]?” Carroll wanted to know.

“Um…pretty much.”

“Just give me an idea of what you recall.”

“I think he says, ‘OK, buddy, you have one more out.’”

“And when the [CAPU] played that tape for you…explain to the jurors your reaction as you begin to hear that tape. What do you
say
when you listen to that?”

“I said that it was definitely his voice. I mean, it was just—it was just his voice to me.”

“No doubt in your mind?”

“No.”

“Miss Todaro, the man we have been talking about, John Zaffino, is he present in the courtroom today?”

“Yes, he is.”

“Where is he sitting and what’s he wearing?”

“A brown-green sweater. Right there.”

“Man in the second chair there?” Carroll pointed as Zaffino sat with a look of disgust on his face.

“Yes.”

For the next hour, Whitney tried to take the wind out of Carroll’s sail by questioning Christine on every minor detail regarding her statements to police and the tape recordings she had made, but she held firm and never backed down.

After Christine left the stand, Carroll called Vince Felber, his final witness, who explained how the case against John Zaffino was managed by the CAPU.

Larry Whitney had a job in front of him. He needed to counter each piece of damaging testimony against his client. If all went well, he also needed to put his client on the stand and have him explain to the jury, in his own words, that he was in no way involved in the murder of Jeff Zack. Juries want to hear from defendants. They want to look into their eyes and watch them as they speak. They want to feel the emotions and develop a sense of a defendant’s moral compass.

Everyone was going to have to wait. Whitney wasn’t saying one way or the other whether his client would sit in the witness chair.

The first witness Whitney called was Mike Frasher, who explained the day—June 16, 2001—he and John Zaffino had sat on his porch and talked.

By the time Frasher finished, Zaffino looked more guilty than he ever had. Frasher’s words gave the jury an understanding that John Zaffino had the
time
to murder Jeff Zack and also make it to that car show.

Next up was Odell Lyde, who was a recording studio producer. He and his wife were inside the BJ’s parking lot when they heard the whip crack of a gun go off. When he heard it, Lyde said he turned quickly and got a good bead on the motorcyclist. Larry Whitney read parts of Odell Lyde’s statement to police. Lyde had described the motorcycle. Whitney thought he was giving the jury an alternative theory—that it could have been someone else besides Zaffino on an entirely different bike.

But Whitney’s plan didn’t go quite as well as he might have planned. “And it says,” Whitney said to Lyde, reading from the statement Lyde gave to police, “‘I thought there was a backfire of a car, saw bike speed away, and then it says, bike, white and black.’”

Odell Lyde answered right away. “Right.”

“So—so this would—does this refresh your recollection as to what you saw?” Whitney sounded cocky and somewhat arrogant.

“I’m not going to say,” Lyde answered, “the bike was white and black, per se, the whole bike.” Whitney’s jaw dropped. “Those were the colors on the bike that I remember.”

Whitney couldn’t get the words out of his mouth fast enough: “OK.”

“I wasn’t trying to describe the bike as a whole.”

“I got you,” Whitney said, his voice rising. “I got you. So what you saw as the bike sped away, the colors you saw, was white and black?” He was trying to get Lyde to disagree, in other words, with ten other witnesses.

“Colors that stuck in my mind was white and black,” Lyde said.

“I got you,” Whitney said, trying to stop Lyde from expanding on what he was saying. “OK.”

On cross-examination, the prosecution pointed out the obvious: Odell Lyde saw a man on a bike speed away from BJ’s after shooting someone. The bike was white and black, Lyde said, but could have also been painted other colors, too. All he saw was white and black.

Whitney called a landscaper next, Mike Bruce. He had hung around with Jeff Zack and went bike riding with him “every week or every other week” right up until the day of his death. In total, Bruce was on the stand for about five minutes. He answered approximately fifteen questions. The one Whitney no doubt wanted to float in front of the jury most was an exchange between Bruce and Whitney regarding Jeff Zack’s demeanor during the last weeks of his life. “And did you ever at any time notice that—that Mr. Zack,” Whitney asked, “had been beaten up or appear to you to be beaten up?”

“No.”

“OK. Did he continue to ride bikes with you?”

“Yes.”

Apparently, Whitney wanted to establish that Jeff Zack didn’t appear to have sustained a beating by anyone, especially John Zaffino, as some had speculated. But the fact—at least according to Mike Bruce—that Jeff Zack didn’t show signs of being beaten up didn’t answer the question of whether he had tussled with anyone. With his second witness, Whitney seemed to be dancing around certain factors without coming out and talking about them specifically.

Whitney next put on another witness who was in the parking lot of BJ’s, someone who spent a total of six minutes on the stand explaining nothing that proved John Zaffino was or wasn’t the person on that motorcycle on June 16, 2001.

Whiddon and Mike Carroll, sitting, listening to each of Whitney’s witnesses, couldn’t help but think,
Is this all he’s got?
“We couldn’t believe that Larry Whitney,” Whiddon explained later, “who we knew was a competent, good defense lawyer, wasn’t putting on a case.”

And then, Whitney called Cheryl Johnston—shockingly—his final witness. John Zaffino wasn’t going to testify.

Johnston was also at BJ’s on the day in question. She said at about noon, she was sitting at a stoplight on Home Avenue.

“And what do you see?” Whitney asked.

“Something catches my eye.”

“What is it that catches your eye?”

“It turned out to be a motorcycle,” Johnston said, “with a rider on it. And it was kind of an odd thing. It just”—she stopped, hesitated, then—“there was something about the color or the way he was dressed or something just caught my eye. And I watched him pull out of the gas pump area and come down the driveway…and tried to figure out the color of the bike, which I know the colors of the bike was—to me, they were sour apple green and cream.”

Whiddon and Carroll looked at each other and smiled.

“OK.”

“And—”

“Let’s stop right here,” Whitney said. “So the bike you saw leave the pumps and come down the driveway was sour apple and cream?”

“Yes.”

Mike Carroll had convinced the judge to allow him to place the motorcycle the CAPU had taken under a warrant from Nancy Bonadio and Russell Forrest in the courtroom. This way, witnesses could take a look at it up close. It was a brilliant move on Carroll’s part, more drama than actual legal strategy. Just having the bike sitting there for the jury and anyone else to look at made the impact of it that much more powerful.

Whitney asked, “Did you go in and look at that motorcycle sitting in that courtroom next door?”

Johnston said, “Yes, I did.”

“Was that the motorcycle you saw that afternoon?”

“Absolutely not.”

“Thanks.”

After a few more inconsequential questions, Whitney asked Johnston to describe the driver she saw on the motorcycle. She had noticed what he was wearing because he was dressed “really odd,” she said.

“Tell us about how he was dressed.”

“Well, he had brown shoes on, brown socks on, brown dress pants like you wear for a suit, and he had a silk brown zip-up jacket on, long, you know.”

A few questions later, Whitney asked, “How much of his face could you see?”

“All of it actually. I could see his lips. He didn’t have a mustache. I could see his eyes, his forehead. I didn’t see any hair.”

“OK. I want you to look at this man,” Whitney said, pointing to Zaffino, “sitting right here, John Zaffino.”

“Uh-huh.”

“Is this the man that was riding that motorcycle?”

“No.”

“OK.”

“Definitely not.”

Later in her testimony, Johnston said she thought the guy driving the motorcycle was “Iranian.”

On cross-examination, the prosecution got Johnston to admit that when she realized—after reading the newspaper—that she had perhaps seen the shooter leaving BJ’s, she didn’t call the police. Instead, she called Larry Whitney. Not one or two days after the murder, however, but almost eighteen months after the crime had occurred.

With Johnston’s testimony concluded, Larry Whitney, apparently feeling confident he had explained the prosecution’s case away, rested.