document | Justice for Toney

Toney’s Summary of Documents

Thank you for joining us and for your interest in our campaign to "Free Toney Davis." While the focus herein is not predicated on a chronological outline of events, it is our intent to provide you with specific comprehensible documentation—all of which can be found in court records from Toney's 28+ years of state and federal appeals—that will prove Toney has yet to receive his just day in court and that he was not only convicted and sentenced to death for crimes he did not commit, but also he has been caged for 30+ years – convicted for "crimes" that never occurred.

The "evidence" presented to the jury that convicted him was/is based purely in a combination of half truths and outright lies, which becomes abundantly clear once a simple comparative analysis of statements by key witnesses is conducted.

The lengths to which the state went in presenting such duplicitous "evidence" will demonstrate the maliciousness of the prosecution, the blatant disregard for Toney's constitutionally guaranteed rights to fair a trial, and, most importantly, the unreliability of his convictions.

Anyone taking an objective look should easily conclude that this case is about a man who has been unjustly convicted, one in which the state - knowing Toney's trial lawyer didn't hire a single expert to dispute any "facts" they'd present at trial - manufactured guilt by withholding evidence and manipulating the jury with lies, not about a guilty man who was justly convicted and who should be executed.

Why is that what this case is about? Because there is no criminal case for which Toney should have been prosecuted. The evidence—physically, medically or logically—supports neither the Felony murder nor Capital sexual battery.

However, as further support to demonstrate the lack of virtue attributed to our trusty taxpayer paid public servants who prosecuted this case - it should be noted that prosecutors, Stephen Bledsoe and Laura Baer, arranged—as incentive to testify against Toney—for a 25 year old "jailhouse snitch" to meet a 17 year old jail inmate at the State Attorney's office, where the man raped the child. Not only did the prosecutor arrange the meeting but also provided the condoms used in the assault. After the man got what he wanted, he refused to take the stand and lie at trial.

We shall start with the charge that provided the state its only opportunity back then to seek the death penalty: Capital sexual battery

The final two sentences on the first page of the autopsy report unequivocally proves Toney was charged with a "crime" that never occurred. (See Doc.#1)

The medical examiner, Dr. Floro, however, told the jury that - despite the fact he had never witnessed any injuries prior to autopsy - the injuries "healed and completely disappeared" before he conducted the autopsy.

The state manufactured the charge based on statements by an EMT who said he saw vaginal bleeding and Dr. Whitworth who wrote in his initial report that he saw "hemorrhages" "c/w attempted penetration" in the hymenal area. (See Doc.#2)

The prosecutors, however, withheld evidence of a statement by the child's mother, who said - less than 72 hours prior to her daughter's admittance into the hospital where she was declared brain dead - her husband admitted to abusing the child, after she confronted him about a lump on her head and vaginal bleeding.

They knew withholding the evidence would allow them - one of several instances where they manufactured or manipulated evidence to make Toney "look" guilty - to present false evidence to the jury: the mother lied when she told the jury her daughter had never had vaginal bleeding.

Dr. Whitworth lied: by trial his initial diagnosis of "attempted penetration" had turned into a full blown sexual assault. He testified the vagina was penetrated. (See Docs#3/4)

Also, he lied about the timing of the "injuries." In a sworn deposition he stated the "bruises" were as much as 72 hours old when he saw them on Dec. 9th. But when the prosecutor questioned him at trial, he cut the time by 3/4 - which in itself is suspicious - down to 18 hours. Then when confronted with his sworn statement, he lied. (See Doc.#5)

He told the jury he was referring to lacerations, not bruises - despite the fact that he said "bruises" more than once. He was being questioned about the timing of what he considered specific evidence of a crime in this case. There were no lacerations in this case, so it makes absolutely no sense that he would diagnose something that doesn't apply. There was evidence of bleeding within 72 hrs., and Whitworth originally estimated what he found was as much as 72 hrs. old. Then prosecutors hid evidence of prior bleeding, and the doctor cut the time by 3/4. Again, more manipulation to make Toney "look" guilty.

Post conviction:

During a short period in which Toney was in "lawyer limbo" and unrepresented, he took the initiative to contact several experts, presenting each with "evidence" surrounding his convictions and requesting their expertise with regards to it. Keep in mind they weren't paid for their time, which prompted some to limit their involvement. And while everyone he contacted was adamant that vaginal injuries related to an assault would not have healed and disappeared in a day, a couple granted his request for a favor in the name of justice and provided sworn affidavits. (See Doc#6)

At Toney's evidentiary hearing, Dr. Edward Willey - forensic pathologist and one of Dr. Floro's predecessors at the Duval County M.E.'s office - testified on Toney's behalf. In fact, prior to trial, "defense" counsel had consulted Dr. Willey who, after reviewing the case, informed counsel that he was certain no sex assault had occurred, that he would testify that the absence of injury supported his medical findings, which - without wavering an iota - is exactly what he did during the evidentiary hearing.

Dr. Willey doesn't dispute the presence of the "redness" that Dr Whitworth described°, however, he does not agree with the diagnosis that it was an "injury." He remains adamant that it wasn't an injury at all and relies on medical sciences to support his position: he avers that had it, in fact, been an injury caused by a Dec.9 assault, not only would it not have disappeared, but it would've been even more pronounced after death and more visible at autopsy. He explained that this is due to a "medical phenomenon well-known to pathologists" called "Hypostasis." (See Doc#7)

In addition, he offered three plausible medical explanations that could account for the "redness" and its speedy resolution. One, it may have been due to irritation from urine or feces, bad hygiene (daycare workers stated they detected both a discharge and an odor the last time they had changed her diaper) Two, a chemical reaction to "bubble bath" soap. Three, and Dr. Willey actually discovered this fact, it was likely the result of the Foley catheter being improperly inserted. According to a report in the medical files, the nurse who inserted the catheter did so without aid of lubricates - which defies protocol. (See Docs#8/9/10)

Dr. Willey also submitted medical studies that supported his testimony concerning healing. One study in particular—”Healing of Hymenal Injuries In Prepubertal and adolescent Girls: A Descriptive Study —documented the "healing process and outcome" of 239 girls with vaginal injuries. 51 of 118 prepubertal girls suffered "submucosal hemorrhages," which was what Dr. Whitworth diagnosed in this case. The severities ranged from mild (least severe) to moderate to marked. Not a single girl - all healthy and active - unlike here where the child was unfortunately diagnosed as clinically brain dead and on life support - had an injury that was completely healed and gone before 3-16 days. (See Doc#11/12, Table 1)

*Very Important note* The Florida Supreme Court denied Toney relief on this issue for reasons contrary to fact: (1) they said that Dr. Willey's testimony wasn't credible because it was not supported by the treatises he'd submitted. The court, obviously not bothering to read or consider the study mentioned above, erroneously cited that the studies documented healing patterns of "lacerations," not the less severe injuries noted in this case°, (2) also because - though he's a forensic pathologist, same as was Dr. Floro - he's not an expert in child sexual assaults. (See Davis v. State, 136 So. 3d 1169 (Fla. 2014)

Besides, Dr. Wright, other experts, yet to testify, agree the absence of vaginal injuries found at autopsy proves no assault occurred on Dec. 9th: Dr. Janice Ophoven (See Doc#13)°, Dr. Jonathan Arden (See Doc#14/15)°,

Dr. Theodore N. Hariton agrees that the redness was most likely due to the improper catheter insertion. (See Doc#16)

To rebut Dr. Willey's evidentiary hearing testimony, the state called Dr. Whitworth's replacement, Dr. Randall Alexander. The prosecutor was somewhat successful in getting him to say what they needed to rebut Dr. Willey's testimony°, however, as soon as defense counsel cross-examined him about the science behind the evidence and Dr. Willey's testimony, he agreed with Dr. Willey, with every point he'd just moments earlier disputed. But then, when the prosecutor redirected, he'd flip and say what he obviously thought the state wanted to hear - without regard to science or, most importantly, the truth.

But before delving into his vacillating testimony, we'll first look at where his lies began: in his initial case review report he stated, " ... victim of lethal shaken-impact syndrome°, and was acutely sexually abused." (See Doc#17)

As defined by Webster Encyclopedic Unabridged Dictionary of the English Language: Acute adj. 1. sharp or severe in effect... 2. extremely great or serious... acutely adv.

At some point (probably when he conferred with prosecutors, and they realized his report wouldn't help explain how the injuries could disappear in 26 hrs.) in between writing the report and testifying at the evidentiary hearing, the injuries he considered evidence of an acute sex assault were downgraded to "superficial." Then to make it appear as though his testimony was merely in support of Dr. Whitworth's diagnosis of the injury's severity - which Whitworth never articulated - he completely fabricated the meaning of the term "flame-shaped" used by Whitworth to give the false impression that his use of the term itself meant he'd diagnosed the injuries as superficial°, this in turn would justify why there was no evidence of injury found at autopsy. He said, "Flame-shape is kind of child abuse pediatrician code for really thin superficial." (See Doc#18)

Dr. Alexander described the location of the injuries, stating, "... And the injuries we are talking about are outside of the vagina." (See Doc.#19)

Then he said, "... And so we call that the genital area injury. So, we would not call it vaginal..." Next, when asked if it's a penetrating injury, he contradicts himself, "Yes." ... "You're still not in the vagina..." (See Doc.#20)

Then, again, attempting to justify contradictions and make his testimony fit the state's "penetration" theory, he lied, claiming that being "...in between the labia" is penetration "inside."

But under Florida law, penetration occurs only with entrance into the vagina itself. Again, sure to reemphasize his new "superficial" diagnosis, he stated, "...I mean, this was about the least amount of injury you could get and have injuries..." Then he makes some incoherent comments about injuries (See Doc#21)

The prosecutor asked if he agreed with "Dr. Whitworth's medical evaluation of the case." He stated, "I do not disagree." Then about Whitworth's opinions and conclusions, he said, "They make sense to me." (See Doc#22)

Also, he affirmed he's in agreement with Dr. Whitworth's descriptions of the "hemorrhages and the bruising." Then, back to the lie that Whitworth's use of flame-shaped = superficial, he agreed, "it makes sense to him." (See Doc.#23)

The prosecutor both asked and stated, "...do you disagree with Dr. Willi's [sic] opinions and conclusions obviously? He replied, " I do." (See Doc#24)

On cross-examination - though he just stated he agreed with Whitworth's descriptions of and conclusions about the injuries - not five minutes in, he flip-flops. When asked about the redness, he said he can't be sure from looking at the photos what is being described. "To be sure, I would want to talk to the person who did it or get a really good photo. He said he didn't have either option. "I do have Dr. Whitworth's report." Counsel asked, "So all we have is your interpretation of what you think his report means?" He replied, "And something in the photo that seems to correspond of what I think he's getting at, yeah." (See Doc.#25/26)

Yet, under oath - despite being unsure of what is described in photos and only an "interpretation" of "something" that "seems" to correspond with what "I think he is getting at..." - he's telling the jury that Toney raped this child. He did agree that Whitworth should have been told that there was a bloody discharge a couple of days prior. (See Doc.#27)

Also, he admitted that without knowing the extent of the tissue damage, there's no way to know whether the injury happened on the 8th or 9th. (See Doc.#28)

Yet, he disagreed with Dr. Willey's assertion that the tissue should've been analyzed. He agreed that feces can cause genital redness; and this is so common with bubble bath that he advises moms to use "regular water, no bubble bath." Most importantly, he said, "When we see kids that have red genital areas, abuse is real unlikely to be what we're looking at. It is much more likely that they are irritated..." (See Doc.#29)°,

that bacterial infections can produce redness "above and beyond kind of normal red color..." "Any chemical reaction or potential bacteria overgrowth or even fungus." (See Doc.#30)

Then—after all the effort he put into repeatedly stating that his new found "superficial" diagnosis he said Whitworth supported with his use of "flame-shaped"—he stated, " I think it was superficially pretty much [sic] you are defining it [sic] will not leave anything long lasting. But you are right in a sense. It is not going to go away within 24 hours or it might last a little longer..." (See Doc.#31)

After all that, he finally admits, "...it is not going to go away in 24 hours." Subsequently, on redirect, he's back to the "flame-shaped" spiel, as soon as the prosecutor opens the door. (See Doc.#32)

Despite Toney's presentation of medically/scientifically supported evidence - all of with which Dr. Alexander at one point concurred - not to mention the fact that no evidence of a crime ever existed and that the state hid evidence related to prior bleeding, the Florida Supreme Court still denied relief, stating that the state "proved (beyond a reasonable doubt) the injuries occurred when the child was in Toney's care." Which, by the way, was a total of approximately 30 minutes of her entire two years of life. First-Degree Felony Murder:

This charge and conviction, too, is based on "evidence" that is evidently nonexistent. Once again, relying on false testimony by Drs. Floro and Whitworth, the courts continue to erroneously claim that - despite an abundance of medical/scientific evidence to the contrary - the state "proved" the head injuries leading to death could not have been caused by anyone other than Toney.

First, we will show that the state never "proved" such, which in itself renders Toney's conviction unreliable°, Then - because there wasn't evidence of head injuries related to a criminal act, much less severe enough to cause death - we will show that the evidence actually proves this little girl was very sick and she succumbed to illness, not that she was murdered.

While the state claims that the child was repeatedly hit in the head, everyone who initially saw this little girl at the time she was admitted into the hospital all describe her as having only one bruise on her forehead. No one describes anything indicative of multiple skull impacts.

In his sworn deposition, Dr. Floro stated he found a contusion to the "left temporal area" that, based on the "coloration," was "several days old..." And once he peeled the scalp back, he discovered another bruise at the back of the head and the right forehead area that appeared fresh.(See Doc.#33/34)

The left temporal injury is undoubtedly the "several days old" injury the mother said she noticed when she picked up her daughter from her estranged husband's house on Dec.7. The evidence that the state withheld from Toney.

In Dr. Whitworth's sworn deposition, the very first information he divulged when counsel asked him to "Just tell me about your examination." was "... she had a - - a particular bruise of the left temporal temporal area..." (See Doc.#35)

But at trial Dr. Whitworth told the jury there were three separate head impacts, that "you see children dying from head injuries this severe from automobile accidents. You occasionally see children who fall from a second or third story window..." (See Doc.#36)

Then he said, "I mean, she would have lost consciousness or maybe begin to have or maybe stop breathing... almost immediately after injury." (See Doc.#37)

Floro testified, "...unconsciousness will come in right away." (See Doc.#38)°,

that she was hit so hard it lacerated bridging veins to the brain. (See Doc.#39)

*Very important note* The Florida Supreme Court - instead of reversing Toney's convictions on any of a number of claims warranting reversal, especially the withheld evidence of the head wound and vaginal bleeding - continues to rule that the constitutional violations are of no consequence because a jury, based on the "fact" that the state "proved" Toney is the only person who could have caused the fatal injuries, still would have convicted him. The courts, however, are using the false "immediate unconsciousness" testimony as evidence of that "proof."

For all their talk about "brain injury" "so severe" it was akin to falls from "2-3 story windows" and "automobile accidents," no expert pointed to an actual "intrinsic" brain injury. Even Dr. Alexander agreed that there were none.

Dr. Arden confirms in his sworn affidavit that "...brain swelling is not a direct Impact to the brain and no direct brain (e.g., contusions) injuries were identified at autopsy." He diagnosed the brain swelling as "hypoxic damage" (i.e., caused by insufficient oxygen) (See Doc.#41)

Also, Dr. Ophoven stated that "timing is more consistent with a hypoxial event than head injury." (See Doc.#42)

In Dr. Denicola's sworn deposition - taken 30 years before the either affidavit denoting the elapsed time or cause of brain swelling - he stated that brain "swelling doesn't occur instantaneously," that the swelling occurs "due to a lack of oxygen to the tissue." (See Doc.#43/44)

A 30 year old scientific diagnosis that concurs with statements by experts who recently viewed the evidence can't be coincidence.

There were no fractures that could have caused pieces of the skull to penetrate the brain, nor was there even a concussion injury - which is the least of what was needed to render her immediately unconscious. And since brain swelling was the actual "injury" that lead to death, rather than admit that experts could not point to an injury that could have caused the swelling, they just repeated "multiple impacts" to the jury, making it seem as though they were the cause of deadly brain swelling - all the while knowing there were no defense experts to say otherwise.

If there was any evidence of an actual brain injury, the unconsciousness argument - though still not enough to "prove" Toney is guilty - would have at least made some sense. But without any evidence, not even a concussion, it's just ridiculous.

Drs. Janice Ophoven and Jonathan Arden submitted sworn affidavits in which they attest that the testimony, though virtually unassailable at that time, by state experts has been proven false. Medical/scientific studies have proven that, in fact, children can be "lucid" and appear to function normally for up to 72 hours or longer with injuries that later prove fatal. (See Doc.#40/41)