ST. AUGUSTINE | Defense attorney Michael Nielsen has been here before: the Deltona mass murder case 11 years ago was moved to St. Augustine because of publicity in Volusia County.
Nielsen, along with defense attorneys Jeff Deen and Michael Nappi, are back in St. Augustine at the Richard O. Watson Judicial Center, defending Luis Toledo, who is accused in a triple murder.
The defense and prosecution are working on the challenging task of picking 12 people plus three alternates to serve on the jury. They have summoned 180 people since Oct. 2, chosen 11 jurors so far and hope to finish on Tuesday and then make their opening statements on Wednesday.
Toledo, 35, is charged with second-degree murder in the killing of his wife, 28-year-old Yessenia Suarez, and two counts of first-degree murder in the deaths of her children, Thalia, 9, and Michael, 8. If convicted of killing either of the children, Toledo could face the death penalty.
In 2006, Nielsen was at the St. Johns County courthouse, for perhaps the biggest case it has ever held, representing Troy Victorino, the ringleader in the Xbox murders in which four men beat and stabbed six people to death at a home in Deltona in 2004.
“There are a lot of similarities in the sense that both crimes occurred in Deltona and got moved to St. Augustine, because of pretrial publicity,” Nielsen said. “Both of them involved multiple victims and in both of them the state is seeking the death penalty.”
The cost for defending the accused in the Xbox case was not available. But the Toledo defense has so far cost $77,878 just for expenses such as depositions and investigators. That’s not including the cost of the attorneys for the past several years. Nor does that include the cost for the attorneys during the trial which is expected to last at least the rest of the month.
The defense attorneys are facing off against Mark Johnson, who is the lead prosecutor, and Ryan Will. Johnson has handled 14 murder cases, including five involving the death penalty. Will has 24 murder cases, including three involving the death penalty. Excluding the salaries of the prosecutors, 7th Circuit State Attorney R.J. Larizza’s office has spent $26,182.67 on the Toledo case thus far, not including expenses for the trial.
Nielsen, 55, is lead counsel for Toledo. Nielsen has a contract to work on first-degree murder cases for the state’s Office of Criminal Conflict and Civil Regional Counsel covering the 5th District. Deen, as the regional counsel, is in charge of the office. Nappi also works for the office.
Deen and Nappi declined comment for this story.
Nielsen also has his own private law practice, Neilsen Law Firm in Winter Springs. Nielsen has been a lawyer for 29 years and the Toledo case is his 26th first-degree murder trial. Nielsen said the trio of attorneys are functioning like “three equal branches of government” each with their own jobs in the case.
Nielsen and attorneys Jeff Dowdy and Robert Sanders, who is now a county judge in DeLand, defended Roy Lee McDuffie during his retrial in St. Augustine for killing two coworkers during the 2002 robbery of a Dollar General store in Deltona. That case was also moved to St. Augustine due to publicity. Nielsen and his colleagues convinced jurors to recommend life for McDuffie, who had been given a death sentence at his first-trial but the conviction was overturned.
However, the case that has received the most publicity was the Xbox murders in which Nielsen and Dowdy represented Victorino.
“There are a lot of similarities in the sense that both crimes occurred in Deltona and got moved to St. Augustine because of pretrial publicity. Both of them involved multiple victims and in both of them the state is seeking the death penalty,” Nielsen said in an interview.
But there are significant differences. In the Toledo case, the mother and her young son and daughter were reported missing Oct. 23, 2013. Their bodies have not been found.
That means there are no crime scene pictures or autopsy photos of their bodies.
That was not the case in the Xbox murders. Nielsen said some of the jurors were crying after looking at the pictures in the Xbox case.
“The crime scene photos were horrific. The autopsy photos were horrific,” Nielsen said. “Those people were so severely injured some of their faces were not recognizable. I don’t see how that could not possibly affect a juror in a negative way.”
The victims in the Xbox murders were young people with parents who greatly grieved their violent deaths. But Toledo is accused of killing young children. That has led to some prospective jurors saying they could not fairly reach a verdict.
Nielsen said cases in which kids are victims are also tough on defense attorneys.
“We are all humans,” Nielsen said. “We have an initial connection or feeling of sympathy for a child victim. It’s not like you are not human, but you’ve got to act more like a machine, a legal machine, and don’t let those feelings affect how you represent your client. The main thing is this: Luis is entitled to a fair trial and what we are here to do is protect and make sure his rights are not trampled on.”
Victorino was sentenced to death but since Nielsen and Dowdy convinced some jurors to vote for life it was not a unanimous death recommendation. Jerone Hunter, another man convicted in the Xbox murders, was also sentenced to death but the recommendation for him also was not unanimous.
Those non-unanimous votes would become huge in 2016 when the Florida Supreme Court ruled that a jury vote for death must be unanimous.
That means Victorino and Jerone Hunter, another man sentenced to death in the Xbox murders, must be resentenced. Prosecutors are again seeking the death penalty against the two, who now have different attorneys.
And if Toledo is convicted, Nielsen won’t need to convince half the 12-member jury to recommend life to keep his client off death row.
“Now, we just need one,” he said.