Note: this article initially ran on Oct. 5. Absent last-minute pleas or unexpected delays, both trials are scheduled to begin on Monday with jury selection. Circuit Judge Terence Perkins will preside over the Toler trial, with jury selection in Courtroom 401, then the trial itself in Courtroom 301. Circuit Judge Chris France will preside over the Johansen trial, with jury selection in Courtroom 401, and the trial itself in Courtroom 401. The court said last week that Courtroom TV had signaled interest in possibly broadcasting the Johansen trial. The network has been running brief clips about it.
They are two of the most lurid, high-profile, long-lasting cases on the felony docket of Flagler County’s court. Life in prison is at stake for the relatively young defendants in both cases. And On Oct. 5, both cases were set for trial the week of October 25.
In one, Keith Johansen, 39, faces a first-degree murder charge in the shooting death of his wife Brandi Celenza at their Felter Lane home on April 7, 2018. Johansen has been awaiting trial at the jail since his arrest late that April, initially on a second-degree murder charge. The State Attorney’s Office filed a first-degree murder charge once additional details of the shooting unraveled. In another, Deviaun Antriel Toler, 29, faces two counts of first-degree aggravated child abuse, a count of child neglect causing great harm, a second degree felony, and a count of felony child abuse, a third-degree felony.
Both cases entail the sort of evidence and emotions that will make it especially difficult for lawyers on both sides to impanel a jury. Each case’s jury selection is expected to take at least a full day. The trials will be held before Circuit Judge Terence Perkins and Chris France. They have not decided yet which judge will take which case. Perkins scheduled the two cases for trial at docket sounding today–the last step[ before trial–and told the layers he had ordered extra jurors, to be sure there’d be enough once the lawyers have dismissed those they do not want.
Celenza was 25 when she was shot in the chest with a 9mm firearm. Her young son, 6 at the time, was in the house. So was Johansen. Johansen has contended that it was a suicide: that’s going to be the heart of his defense through his attorney–the sixth or seventh since the case began–the phlegmatic Garry Wood. The house’s interior was wired with surveillance cameras, a reflection of Johansen’s state of mind: footage discussed by the attorneys so far reveals that he was intensely jealous, that the couple was estranged, that the relationship was violent–Johansen could be psychologically and verbally abusive and spoke to her the language of a white supremacist and misogynist–and that the final days were overlaid with a sexual component that may have played a role in the shooting, whether a suicide or a homicide.
The defense has attempted to keep a lot of the footage out of the trial, arguing that it’s prejudicial to Johansen and irrelevant to the case. The defense has also sought to block the prosecution from introducing evidence that Johansen in the past had faced other allegations of violence or stalking of a person with whom he had a prior relationship, or evidence of injunctions against him. The defense also sought to keep out statements by the then-6-yaer-old son about his mother regularly screaming in her bedroom–and doing so the day she died. (The child has not been deposed, nor has the prosecution shown any intention to call the child as a witness.)
Adding to the trial’s layers of complexity–and interest–is one of the defense’s witnesses: Joseph Colon, who happes to be the first man in Flagler County to be convicted of murder and sentenced in the death of another person by drug overdose. He is serving a 30-year prison sentence in a Lancaster prison. Perkins ordered him back to Flagler in time for the Oct, 25 trial. He’s not made it yet. Another defense witness has not yet been secured by the defense, Wood told the judge today, though he said the defense was “still ready” for trial. So is the prosecution. Assistant State Attorney Jennifer Dunton is prosecuting the case.
The families of both Johansen and Celenza are one more element of the unexpected in this trial, as both families have entrenched themselves in their beliefs, and members of both have attended court proceedings, at times indecorously. That prompted Perkins to warn the families that no misbehavior or even improper clothing with messages about the victim would be allowed.
Deviaun Antriel Toler, who has been out on bond and appears to have moved to Palm Bay since the original charges in 2018, is accused of having “knowingly” abused his 20-month-old son by using a washcloth dipped in boiling water, causing burns from the boy’s right shoulder “down the entirety of his right arm,” causing permanent disfigurement, according to the charges. The alleged burns were not treated. Toler also faces an aggravated abuse charge for allegedly spanking his child with a belt and using a tree branch to do so, causing “numerous scarred and open lacerations” and permanent disfigurement. The child was cared for at Wolfson Children’s Hospital in Jacksonville from Feb. 15 through March 7, 2018. The child was initially taken to AdventHealth Palm Coast, which cares for children in its emergency room but not as in-patients.
Toler’s parental rights were withdrawn, according to court records.
The defense, according to court filings, argues that T.T., as the child is known, fell, suffered from three seizures at home and at the hospital, was diagnosed with a skull fractures, retinal hemorrhaging and subdural hematoma.
It isn’t always possible to anticipate the defense strategy in a trial. But it is possible to deduce some or much of it from the maneuvering between prosecutors and defense attorneys ahead of the trial.
The trial is almost certain to hinge on the permissibility of corporal punishment–it is legal in all fifty states, though it has been outlawed in many countries–and the definition of the permissible: under Florida law, it is not permissible when it inflicts cruel or wanton punishment, and when it rises to the level of causing injury. The age of the child–of the victim of corporal punishment–is also relevant: punishing a 20-month-old child, as opposed to an older child, goes to the cruelty and necessity of the legal allowance.
In this case, another clue about the defense’s approach is its filing in June of 54 articles or cases relating to battered children, head injuries, Shaken Baby Syndrome, analyses of falls and shakes, position papers on abusive head trauma in children, and so on. The prosecution has filed a 120-page document in July, a copy of three medical journal articles that analyze the “new science” and claims, dating back especially to a 1987 study, that shaking babies doesn’t really hurt them.
The defense’s articles can be explicit in what they’re trying to refute: “Retinal haemorrhages in a university hospital: not always abusive head injury,” for example, aims to show that such hemorrhages “are suggestive” but not characteristic of abusive head trauma. The study was based on observations of 29 children.
Another item on the defense’s list is the intently titled “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts.” The Innocence Project is the celebrated non-profit founded in 1992 whose work has led to the exoneration of some 300 wrongfully convicted people, but through DNE evidence. In the paper the defense submitted–it appeared in the Washington University Law Review in 2009–Deborah Tuerkheimer’s introduction reads like the opening arguments that the jury may hear come late October in Toler’s case, with some variations (the baby in the case did not die).
“Every year in this country, hundreds of people are convicted of having shaken a baby, most often to death,” Turkheimer’s introduction reads. “In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant’s death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course.”
The three studies submitted by the prosecution present counter-arguments.
One study takes on “The ‘New Science’ of Abusive Head Trauma,” explaining that proponents of “new science” “use a straw man to argue that new science is changing mainstream opinion. This straw theory – “triad theory” – asserts that clinicians simplistically diagnose abuse in any case that has SDH, any RHs [that is, subdural hematoma and retinal hemorrhages] and any cerebral edema.” The study calls the straw theory “ridiculous on its face (abuse is not raised when these findings are seen in children who present after being hit by a car, or with a known, severe crush injury),” but goes on to address the theory’s premises before refuting them.
The study concludes that the understanding of abusive head trauma, or AHT, “has not significantly changed in recent years. One recent survey of hundreds of pediatric specialists at leading children’s hospitals directly assessed which causes were considered most likely to cause the findings associated with AHT. Short falls, vaccines, or choking remained fringe theories as explanations for SDH, RH and coma or death (Narang, Estrada, Greenberg, & Lindberg, 2016). But with the relatively recent recognition of child abuse pediatrics as a new subspecialty within pediatrics, it would be surprising to conclude that the science of AHT has not advanced. Indeed, remarkable progress has been made, especially in the recognition, prognosis and treatment of AHT.
Another peer-reviewed study, published in the Journal of Pediatrics in 2016, focuses on the “Acceptance of Shaken Baby Syndrome and Abusive Head Trauma as Medical Diagnoses” and concludes, based on a survey of 628 physicians, that 88 percent of them said shaking of a baby even without a severe impact would result in result in subdural hematoma, retinal hemorrhages, a coma or death. “Other than a high-velocity motor vehicle collision, no alternative theories of causation for these findings are generally accepted,” the study found.
A third study published in 2017 used a crash-test dummy representing an infant with “biofidelity” (that is, physically as closely as possible) to allow microscopic measurements of the head and neck anatomy after shaking by an adult. That study was in part a response to a 1987 study that had sought to discredit the theory that violent shaking alone, without some form of traumatic impact, did not causes brain damage or serious head injury. As a result of that 1987 study, “The concept that ‘shaking doesn’t hurt babies’ has been promoted in the popular media,” the 2017 study states. “These sources highlight stories of people accused of abusing their children by shaking, and quote defense experts who claim that biomechanical studies have shown that an infant cannot cause subdural hemorrhages, encephalopathy, and retinal hemorrhages. Yet, extensive clinical experience resulting from a number of well-documented cases has demonstrated the harmful effect of shaking children.”
Perkins, the judge, has ruled that expert testimony on abusive head trauma is permissible–an early victory for the prosecution.
The case promises to be complex and demanding on jurors’ ability to understand and synthesize not only medical arguments, which will be presented by expert witnesses, but moral and ethical ones.
- Keith Johansen’s Defense Wants to Keep Out Evidence of His Racist and Sadistic Threats Before Shooting Death of Wife Brandi Celenza
- Judge Sets Stern Ground Rules Ahead of Keith Johansen Murder Trial in Shooting Death of Brandi Celenza
- Keith Johansen Arrested in Shooting Death of Wife Brandi Celenza, Faces 2nd Degree Murder Charge
- Palm Coast Man Arrested on Charges of Bathing Toddler in Boiling Water and Beating Him
Ain’t palm coast paradise!
Uggghhhh, some people need to raise the bar for their personal actions & conduct.
Mr. Toler out on bond. Is he working to pay the bill for the child? Sad. He will probably get no time.
Ray W. says
Roughly 20 years ago, I represented a young woman accused of first degree murder for the death of her child. The jury found her not guilty after about three hours of deliberation.
The initial allegation hinged on the Shaken Baby Syndrome (SBS). After days of pre-trial testimony from four expert witnesses (two State and two defense), Judge Hammond entered an order finding SBS inadmissible during trial because it did not meet Florida’s Frye Standard, which pertains to the admissibility of expert testimony. In other words, Judge Hammond found SBS to insufficiently reliable and, therefore, inadmissible. The State had to change its theory of prosecution.
Upon reading Judge Hammond’s order, I realized it could be interpreted two different ways. I waited 30 days for the State to file an appeal; it did not. I then filed a motion to clarify the ruling. At the hearing, Judge Hammond started by asking why I had filed the motion, as I had “won” it. Steve Nelson jumped up, asserting he had won the motion. Judge Hammond, in one of his great quips, exclaimed that every judge’s fantasy was to write an order than neither attorney understood. He told Steve that he most certainly did not win the motion and then looked at the date of the order. Finding that the 30 day time limit to appeal had passed, Judge Hammond commented that his ruling was final. He did clarify that if the State could find an expert who could testify from personal experience at a level that made him or her an expert in SBS, without relying on SBS literature, then he or she could do so, but since such an expert did not then exist anywhere in the country, nor does such an expert exist today, for all practical purposes, SBS still does not meet the Frye standard in Flagler County, unless the 5th DCA or Florida’s Supreme Court has weighed in on the issue. State experts could testify, but they couldn’t use any form of the term, SBS. (After the trial, I deposed a medical examiner in another case who, off the record, stated that medical examiners were being taught at seminars to no longer testify using the term SBS; it was now to be described as Shaken Impact Syndrome. It had been accepted in the medical examiner community that shaking, alone, does not cause the injuries described in SBS literature.).
Oddly, though SBS was first published as a theory in the early ’70’s, at the time of trial, none of the DCA’s had ruled on SBS and the Frye standard. The 1st DCA subsequently ruled it admissible under the Frye standard, but on significantly different facts from my case. The 1st DCA is not binding on the Seventh Judicial Circuit.
Steve had listed a Jacksonville-based physician as his primary expert witness. That doctor headed a trauma team that was called in whenever a child presented in that hospital’s emergency room with injuries consistent with SBS literature at the time, i.e., subdural or subarachnoid hematoma, bilateral retinal hemorrhaging, spiral fracturing of extremities, micro-stretching of neck muscles, shallow rapid breathing, and other symptoms. He had headed the team that worked on my client’s child. The doctor was (and still is, I presume) highly respected in his field. During his deposition, the doctor relied on standard SBS literature to describe that a child could not receive the injuries that my client’s child suffered from a short-distance fall; it required a fall from at least seven stories to cause such injuries without shaking. Shortly afterwards, I attended a seminar at which a video-recording was played of a child falling from a height of approximately four feet and landing on the side of her head; she died the next day after presenting to the ER with subdural hematoma and bilateral retinal hemorrhaging. The child’s grandmother had set up a video-camera in the garage on a rainy day. The parents brought in a Fischer-Price playset from outdoors and placed it on two layers of carpet remnants over the concrete floor. The grandmother was distracted by a slightly older brother who was crying to his mother in the kitchen when the little girl, who could barely climb, leaned out holding onto a post while calling out to her grandmother. The grandmother saw her too late as the child lost her grip and toppled over. In one of the rarest of coincidences, the little girl lived in Jacksonville and presented to the State’s expert’s ER. Initially, the child’s mother was arrested on SBS theory, because the grandmother, in all the commotion, forgot about the video-recording. When she remembered, detectives picked up the recording and watched the incident. Criminal charges against the mother were dropped.
I bought an hour’s time from the doctor and asked him about the little girl. He said he could only review the file if I persuaded the judge to release the autopsy report. I got the court order, obtained the report and bought another hour of his time. The doctor reviewed the autopsy report, opened his medical file, looked it over, turned to me and stated that he had to change his deposition testimony, because he knew that SBS science was wrong, in that a child could die from a short-distance fall, because he had supervised that child’s medical treatment, too. Later, on cross-examination as the State’s lead expert, he told the jury that a child could die from a short-distance fall in the manner described by my client.
While there was so much more to this case, SBS falls into the category of junk science. Since it is medically unethical and illegal to shake a child in order to determine the level of force necessary to cause injury or death, the syndrome relies on inferences. The problem with inferences is in the methodology. Since inductive logic requires that all inferences lead to one result to the exclusion of all other possible results, any instance that breaks the chain of inferences topples the whole scientific effort. The literature on bilateral retinal hemorrhaging relies on examining eyes of children whose caretaker is suspected of abuse. If no abuse is suspected (for example a child dying in a car crash), no one examines the deceased child’s eyes. Why? There is a large industry throughout the country that relies on corneal transplants. Parents of children who die in hospitals from car crashes are asked to consider donating organs. Thus, only eyes from children who are thought to be victims of abuse are examined. One simply cannot support the inference necessary to prove bilateral retinal hemorrhaging as symptomatic of SBS when one only tests the eyes of children who are suspected of being abused, and no others. Putting the cart before the horse in this manner undermines any possible level of scientific rigor, yet highly-paid State experts still testify that bilateral retinal hemorrhaging is symptomatic of SBS. Why the State still uses junk science to prosecute individuals for SBS is beyond me.
The contortions the other State expert witnesses went through during that trial were amazing. One expert made up a theory that traction within the vitreous fluid had caused the bilateral retinal hemorrhaging, something that has never been discussed in any of the literature. He stated it was his personal theory (his pet theory was derived from the way water moves up a cloth if one dips it in a glass, as water molecules bind together sufficiently to climb the cloth against the force of gravity, which purportedly similar binding between vitreous fluid molecules somehow caused the retina to detach from the eyeball wall (I have long forgotten the medical term for the layer on which the retina attaches)). Somehow, in that doctor’s imagination, the binding between vitreous fluid molecules somehow also was equally binding on the retina, with no studies to support his testimony. When I asked him if this meant that Newton’s three laws of motion had been disproved, despite four hundred years of other people trying to disprove it, including the still-unprovable Hawking’s String Theory, based on quantum gravity, the doctor answered, yes, Newton’s three laws of motion had been disproved. I retorted that is he believed that, I had no other questions for him on any subject. This is the quality of witness the State used to counter their own primary expert’s adverse testimony. In the only time I have ever had this happen in who knows how many trials (I have tried over 200, but many were as a prosecutor), Steve argued to the jury during second closing that they should reject the first degree murder charge and find my client guilty of the lesser included offense of manslaughter. The jury rejected his argument.
In summary, medical examiners are now taught to use the term, Shaken Impact Syndrome, because the inferences on which SBS is based are no longer supported by the biomechanical literature. Biomechanicists have long shown that children can die from short-distance falls. Indeed, in one of the earliest publications, a biomechanicist requested ER records from hospitals nationwide for a two year period for children whose injuries are reportedly derived from playground injuries. He received several hundred thousand records. Contained in those records were numerous (I remember it as 23, but I might be wrong) deaths of children who had been witnessed falling from playground equipment and landing on their heads. The biomechanicist obtained police reports, medical records, witness statements and autopsy reports for each playground-caused death and published the findings. All of the children had subdural or subarachnoid hematomas or both. Some has bilateral retinal hemorrhaging, but not all of the deceased children’s eyes were examined. Remember, a syndrome based on inferences falls when one instance disproves the inference. Over a two-year span, 23 or so children presented in emergency rooms with injuries consistent with SBS and subsequently died, yet they were never shaken. Medical examiners know this. I can’t speak to whether State expert witnesses who are highly paid to support SBS will continue to rely on junk science.
Perhaps, someday, I will expound more broadly on the phrase: “That defies all logic and reason” and the political chaos caused by those who intentionally distort its meaning, but not today.