If his body language hadn’t telegraphed it, his words soon did.
“This is isn’t a jury of my peers, just to let you know,” Deviaun Toler, 29, said, cutting off Circuit Judge Terence Perkins, who’d been briefing attorneys on finishing up the day with a few jury instructions and a word on masks once the jury of four men and four women, including two alternates, was seated. Seven are white. One is light-skinned Black or Hispanic.
“Excuse me?” Perkins asked.
“This isn’t a jury of my peers,” Toler said again. “I don’t know how this process went like this, I don’t know how it works. This is my first time. This isn’t a jury of my peers.”
Toler is on trial on four charges of child abuse, two of them first-degree felony aggravated child abuse charges that, a count of felony neglect of a child, a count of felony child abuse. If convicted on all charges, he faces a potential maximum sentence of 80 years. The prosecution offered him a plea deal: 25 years in prison.
The child victim at the heart of the case, his 20-month-old son at the time of the incidents in February 2018, was treated for a burn on his arm, bruises on much of his body, marks from the loop of a belt, evidence of corporal-punishment-type thrashings with a belt, and a fractured skull. Toler contends that the child was never abused–he does not contest disciplining the child with corporal punishment, which is legal in Florida–and that his skull injury was the result of a fall. Toler has since lost his parental rights, a fact that is likely, but not certain, to be heard by the jury. He has been out on bond.
John Hager, the Daytona Beach attorney representing Toler, explained to the judge that Toler was upset over the fact that the juries picked were representative of the front load in the jury pool, with more minorities slated at the back end. (The jury is set once the two sides agree that they have the needed number, after each side has gone through its allowed eliminations. They don’t have to make it all the way through the pool to decide, unless they don’t have enough jurors.)
“Just like the state would like some that are later in the panel,” Perkins told Toler, “but they don’t get to cherry pick them and you don’t get to cherry pick ’em.”
“The not-minorities that were picked, I don’t feel comfortable that literally the other Black people were in the back,” Toler said, speaking quietly but firmly, “then you have all the Caucasian people up front, then you say we didn’t get to the back because we didn’t get to them. It’s not fair.”
“They’re not all on the back, that’s absolutely wrong, they were not all in the back,” Perkins said, cautioning Toler that he wasn’t arguing the point. “What I’m telling you is, I don’t get to pick that this case is going to be tried by minorities, or that this case isn’t going to be tried by minorities. All I get is a random pool of jurors, and we go one by one, starting with the first one, all the way through till we get our jury. If there are reasons to exclude jurors then we take them up one at a time, both for cause and preemptory, and on preemptory I’m not even asking questions. You get to make that choice, which is what we did. That’s the rule that I have and that’s the law I have to follow.”
“So when you say a jury of my peers, what do you mean exactly?” Toler asked the judge.
“I mean, a random selection of jurors from this community. That’s it,” Perkins said. “That’s a jury of your peers. And I’m sorry but I’m not making that up. That’s what the law says.”
Toler referred cryptically to “prejudicial things that are happening” before the trial, but didn’t contest the point further. (A Duke University study a decade ago found that in Florida, all-white jury pools were 16 percent more likely to convict a Black defendant than a white one, but that the inclusion of even one Black juror nearly eliminated the gap.)
What was left of the jury pool was called back in, those selected took their seats in the jury box and were sworn in, then Perkins read them a set of jury instructions–and let them know their mask-wearing was optional, as six of the eight jurors promptly doffed theirs.
Before jury selection began Perkins today ruled on several pre-trial motions. The defense was attempting to keep out of the trial references to Toler’s admission to law enforcement that he had searched on the web how to treat a burn and symptoms of head injury, and that, after he voluntarily turned over his iPad to law enforcement, the device was somehow wiped clean and rest to factory settings–a measure easily done remotely. “There has been no admission by Mr. Toler that he wiped the device,” a defense motion states. Perkins ruled that the evidence may be admissible, assuming the prosecution has the proper foundation to enter the matter into evidence. The judge granted the defense’s motion to keep out of the trial Toler’s taking attention deficit disorder medication. The prosecution agreed to the defense’s motion to keep out of the trial any mention of statements by the child to his mother (“Daddy did this to me,” his mother reported in a deposition that the child had told her, pointing at his injuries), statements considered hearsay.
In a society where, according to the Centers for Disease Control, one in seven children in the past year have experienced child abuse and neglect–1,840 children have died of abuse or neglect in the country in 2019–the selection process itself was almost bound to bring out jurors’ anxieties over serving on a panel for a child-abuse trial. One juror said she’s going through a child abuse case involving her granddaughter. She wasn’t sure she could be impartial. “All I can tell you is I’ll try,” she said. Five other potential jurors said they couldn’t be fair and impartial. One was a bereaved mother who’d lost a child, and who couldn’t listen to testimony about a child being abused. One was a victim of child abuse. One said outright his mind was made up.
“Does anyone here believe that doctors don’t make mistakes?” Hager, the defense attorney, asked the jury pool, a question that may sum up the defense’s argument: that the charges are a big mistake. He also asked another revealing pillar of the defense: “How many people believe it is the parents’ right to discipline their child?” He did not define “discipline.”
Assistant State Attorney Melissa Clark is prosecuting the case. Opening arguments are scheduled for 9 a.m. in Courtroom 301 at the Flagler County courthouse.