5. Marsy's Law

PODCAST:

[00:00:00] David: You hear about things like that happening, but they always happen to somebody else. They happened to other people. And this time it didn't happen to other people. It happened to my dad. 

[00:00:11] Steve: It's 1994. David Toney was 24 years old and living in Ashland Kentucky, USA.

[00:00:59] 

[00:01:00] David: I grew up in Eastern Kentucky. It's a fairly mountainous region. I was always active and into sports, always outside. 

[00:01:08] David: 

[00:01:08] David: As I got into my teenage years, I started doing things that I shouldn't at that age; drinking, drug use and end up joining the military due to lack of opportunity in the area.

[00:01:20] Steve: I asked David about his father Tom.

[00:01:24] David: Dad, 

[00:01:25] David: had an eighth-grade education, but the man could do anything. He could draft, he could weld, he could do electrical, he could do plumbing. Everything that he could do, he was self-taught 

[00:01:38] David: 

[00:01:38] David: and he did that all just to earn a living, to feed his family.

[00:01:41] Steve: It was July, and the plant where David worked was closed for routine maintenance. The family were relaxing, everything was chilled, but it was then that David received a call.

[00:01:54] David: 

The Crime

[00:01:54] David: We had been out at the lake that week at some friends' house. And then everything come crashing down about three-thirty, four o'clock the next morning.

[00:02:04] David: My mother's brother called me, and he told me he had bad news. It's a police officer had chased my dad's van, and the guy who was in it got out with a handgun and started shooting, and took off running on foot and got away. 

[00:02:22] Steve: David knew immediately that this wasn't his father. At the time, he'd ruptured a disc in his back and would've been unable to run.

[00:02:30] David: Dean Acres, lieutenant at the time, which happened to be my dad's neighbour as well, he found out that what was going on about Dad not coming home, and he immediately initiated a missing person's report. 

[00:02:43] Steve: The police arrested a Roy Pearce on the 19th of July, which was actually Tom's 50th birthday. They'd found personal possessions of his in Tom's van and enough evidence to be sure that they had their man.

[00:02:55] 

[00:02:55] David: You hear about things like that happening, but they always happen to somebody else. They happened to other people. And this time it didn't happen to other people. It happened to my dad. 

[00:03:03] Steve: However, the police had still not located Tom's body. Only Pearce knew where he was.

[00:03:11] David: They kind of bluffed him a little bit. They made out like they had the body, they had the weapons, they had everything. One of the things they told him to do was confess to everything that you did, write it out in a statement. Draw a map to where you took him, where you left him and what happened. And on that, they used the map that he drew, and it took 'em until the ninth to find the body to find dad's body.

David describes what happened

[00:03:38] David: Roy Pearce had been waiting and trying to carjack somebody at a grocery store called Foodland in Ashland. 

[00:03:46] David: Right before dad got there, someone had called the police because he had just tried to open the door of a teenage girl that was driving by. And luckily, her door was locked, and she was able to drive off, and she got someone to call 911, send the police over there.

[00:04:03] Steve: Unfortunately for Tom, before any police could arrive, Pearce had then turned his attention to him.

[00:04:10] David: He pistol-whipped him, walked up behind him and hit him in the head with a nine millimeter and fractured his skull. And drove to an abandoned industrial park on the Boyd Greenup County line. He got him out of the vehicle and tied him up to a tree. 

[00:04:27] David: He came over there and was shooting near his legs while he was sitting there tied to the tree. After he shot near his leg, he walked up, stuck the gun behind his head and pulled the trigger. 

The trial

[00:04:41] Steve: Just a few months later, in December, Pearce went to trial.

[00:04:48] David: They walked him in handcuffed, in the orange jumpsuit, into the courtroom, and he just had a smirk on his face. Just a low-life piece of garbage. He came in to plead guilty and to be sentenced. And what they end up offering him, and he agreed to, was no chance of parole for twenty-five years. And he ended up taking the deal and going to prison.

[00:05:10] Steve: 

9th November 2020 - the parole hearing

[00:05:10] Steve: Well, fast forward to the 9th of November 2020, twenty-six years later. Now it was time to revisit the events of 1994. David told me about the parole hearing.

[00:05:23] David: There's four possibilities that could happen during the parole hearing. He could be set free. He could have a five year deferment and come up for parole again and again, five years, a ten-year deferment, same thing, parole hearing in ten years, or he can get a serve-out, never comes up for parole, finishes out his sentence, the rest of his natural life. And that's what we wound up getting.

Lelia Vanhoose steps in

[00:05:48] Steve: Now that really should have been the end of the story. But it wasn't. Lelia Vanhoose, chairwoman of the Kentucky Parole Board had signed a directive that convicted criminals attending their first parole hearing, could not receive a serve-out.

[00:06:03] Steve: What's more It was to be retrospective. It effectively overturned the ruling of the previous parole board hearing that David and his family had painfully sat through 26 years after the original crime. Roy Pearce would get another chance of parole.

[00:06:18] Steve: David wasn't prepared to sit back on this. He got to work.

The petition 

[00:06:22] David: I started calling the governor's office. I started calling the Attorney General's office. All these people in Kentucky I started calling, just cold calling. It was a lot of, , "Hey brother, I feel for you, but I can't reach you". 

[00:06:36] Steve: David was fired up. His friend, Thomas McNealy helped him set up a petition on Change.org. He was incessantly making phone calls, making a nuisance of himself. And then one day he was given a number to call an Emily Bonistall Postel from the Marcy's Law organization, who had some news for him. We'll come back to Marcy's Law in a second. But first, David made the call.

 Suit is filed against Board of Corrections

[00:07:00] David: And she said, "You've been stepping on a lot of toes in Frankfort". And I said, "Good". She said, "No, it's great that you're doing this". And so there was two other Commonwealth Attorneys, Jackie Steele and David Dalton, along with Attorney General Daniel Cameron filed a suit against the State Board of Corrections. 

[00:07:21] Steve: On the 23rd of June, there was a breakthrough.

Lelia Van Hoose is fired

[00:07:25] David: The news was broke at about 1:23 in the afternoon that the governor has replaced Lelia Lee VanHoose as the chairperson of the parole board.

Directive overturned

[00:07:36] David: On July the first, which happened to be my son's birthday as well, I got a phone call. Denise Durban. I worked with her. She is the Victim's Advocate Attorney in Daniel Cameron's office . And she said, "There has been a deal made on the lawsuit. If they drop the lawsuit, they will drop the new directive that was giving everybody new parole hearings". 

[00:08:01] Steve: So, criminals like Roy Pearce would no longer be given a second chance. He was locked up for good.

[00:08:15] Steve: Now, you may have heard Marsy's Law mentioned a couple of times. Success was achieved with the help of Marsy's Law. Let David explain how that came about. 

Marsy's Law

[00:08:26] David: Marsy Nicholas, she was stalked and murdered by her ex-boyfriend back in the eighties out in California. Her brother is the one behind Marsy's Law. He and his mother, his family, were in a grocery store. They stopped to get bread, but the guy had been let outta jail. And while in the grocery store, they ran into each other. 

[00:08:49] Steve: And that was too much for Marsy's brother. He said about forcing a change in the law. The outcome was Marsy's Law.

[00:08:58] Steve: Marsy's law ensures that crime victims and their families have constitutional rights equal to that of the accused, which surprisingly they wouldn't have otherwise.

[00:09:08] David: And Marsy's law, once it's put into place into the State Constitution like it is in Kentucky, they can't say, "Oops, I forgot to contact you". They have to do it, or they have to go get 'em and start it over. 

[00:09:21] Steve: David now lives in Tennessee and is working with the Marsy's Law team to help get Marsy's Law passed there. The main website is Marsyslaw.us. You can check it out in the show notes.

[00:09:33] David: It's got some really good information. If people wanna read that and go on there and sign a petition, they've got a petition you can sign, and the more we get that circulated, the better off it'll be.

[00:09:44] Steve: There is one more twist that needs a mention. About the time of the Change.org petition, David was contacted by the killer's daughter. 

[00:09:54] David: She had left a comment on the petition. And she wanted us to know that her dad was a changed man, and she needed her dad, and her kids needed their grandad. And we got a dialogue going back and forth. I found out that the day she found this petition was the day that her brother was shot and killed by police officers in Louisiana. 

[00:10:18] David: And she told me that she just wished she could be with her brother. She just couldn't do it anymore. She wanted to be with her brother. She sent that on the message on a Friday night.

Compassion

[00:10:28] David: I didn't see it till Saturday morning. The next day, I got a hold of the police department in Eunice, Louisiana. I said don't know how to get in touch with this girl. But could somebody find out and do a welfare check on her?

[00:10:42] David: About two hours later, there was another message that showed up on the message board said, "David, I'm okay. Thank you for sending people to check on me". She said, " I cannot believe somebody went through that much trouble to make sure I was okay". 

[00:10:57] Steve: Do they still keep in touch? 

[00:10:59] David: We check on each other. We make sure that each other's doing okay when we talk. If there's an issue that we will sit and try to make sure that each person's on the right. 

[00:11:09] 

Tom Toney day

[00:11:09] Steve: There's one other thing we should mention as well. 

[00:11:12] David: Mayor Chris Perkins decreed that on July the 31st of 2021, it was Tom Toney Day in Ashland, Kentucky. And they said it was in honour of what I had done to help victims in the state of Kentucky. 

[00:11:27] Steve: And where do you stand on the concept of forgiveness?

[00:11:32] David: I ain't there yet, but I can show compassion for his daughter. I can show compassion for his grandchildren. Right there is the best I can do today. Maybe tomorrow I'll get there, but not today. 

[00:11:45] David: I'm no expert on anything. I just show up and take care of what's in front of me each day, one day at a time.

[00:11:59] 

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YOUTUBE (extended version)

0005 David Toney (youtube extended version)

[00:00:00] David: 

[00:00:01] David: You hear about things like that happening, but they always happen to somebody else. They happened to other people. And this time it didn't happen to other people. It happened to my dad. 

[00:00:12] Steve: It's 1994. David Toney was 24 years old and living in Ashland Kentucky, USA.

[00:00:59] 

[00:01:00] David: I grew up in Eastern Kentucky. It's a fair, fairly mountainous region. I was always active and into sports, always outside. 

[00:01:09] David: 

[00:01:09] David: As I got into my teenage years, I started doing things that I shouldn't at that age; drinking, drug use and end up after I got outta high school, joining the military due to lack of opportunity in the area.

[00:01:23] Steve: I asked David about his father Tom.

[00:01:27] 

[00:01:27] David: Dad, 

[00:01:28] David: had an eighth-grade education, but the man could do anything. He could draft, he could weld, he could do electrical, he could do plumbing. Everything that he could do, he was self-taught 

[00:01:41] David: 

[00:01:41] David: and he did that all just to earn a living, to feed his family.

[00:01:45] David: We were really close. After our parents divorced, I stayed with him simply because, at that point in my life, he would always work and I wanted to get to know him. I spent a lot of time with my mom. I was really close with her, but I wanted to get to know my dad better. I stayed with him, and throughout my high school years there for probably two years, it was just he and I, and we really got close and really got to know one another.

[00:02:16] David: I had two brothers, one older, one younger, and the younger brother passed away in 2017. My older brother passed away this past May, and I've got a younger sister that's four years younger than I am. She lives, actually, two blocks down the road from me. So less than a quarter mile.

[00:02:37] Steve: In 1994, the world was coming out of global recession. In Kentucky, on top of that, they were suffering in other ways too. 

[00:02:46] David: Bill Clinton had just been elected and was really pushing NAFTA, the North American Free Trade Agreement, which sent more jobs out of the country. And we wound up with an area that had jobs at the railroad, national mines, steel mills, Ashland Oil.

[00:03:06] David: We end up really not having any work around other than service industries that didn't pay nowhere near as much. And I spent from March of 94, I'm sorry, March of 93 until January of 94 down there working two jobs, waiting on my wife and my son to get over from the Philippines. And once she arrived, we moved to Tennessee.

[00:03:32] Steve: It was July, and the plant where David worked was closed for routine maintenance. The family were relaxing, everything was chilled, but it was then that David received a call.

The Crime

[00:03:45] David: We had been out at the lake that week at some friends' house. And we just all got out there and had a good time. And then everything come crashing down about three-thirty, four o'clock the next morning.

[00:03:58] David: My mother's brother called me, and he told me he had bad news. It's a police officer that I later found out his name was Brent Caldwell, had chased my dad's van, and the guy who was in it got out with a handgun and started shooting, and took off running on foot and got away. And my uncle kept asking me, "Hey, does your dad own a gun?"

[00:04:25] David: "Can you see your dad shooting at somebody like this?" Steve, I said, "Is he physically running or is that just a term used to say that he was getting away?" He said, "From what I understand, he was physically running". I'm like, "That's not Dad. Odds are Dad's already dead, but give me the number to the police department".

[00:04:45] Steve: David was sure that the man in question was not his dad because, at the time, Tom was physically unable to run at all.

[00:04:53] David: And I called and got the questions from them about what size pants does he wear. And they found a portable radio, which we called Jambox over here, and it had his nickname Ziggy scratched into it. Once the van wrecked, he got out, then started firing at the officer and ran, physically ran. I found out. 

[00:05:18] David: And I told him at that point, "Stop looking for my dad as a fugitive and start looking for him as a missing person". And about that time, I guess they were coordinating with Catlettsburg Police Department, and they were getting information from a detective, Dean Acres, lieutenant at the time, up there, which happened to be my dad's neighbour as well. He found out that what was going on about Dad not coming home, and he immediately initiated a missing person's report. 

[00:05:50] Steve: And that was it for 33 days. 33 days waiting, wondering, but no dad, no news.

33 days waiting for news

[00:06:01] David: Every time the phone rang I would jump, hoping it would be good news, but knowing in my heart that the only good news I was going to get was closure, that we would be able to find him and properly lay him to rest. The whole time, July in Eastern Kentucky, it's very humid, very hot, a lot of insect activity, a lot of animal activity, and knowing that we can't find him anywhere always made me think that his body was in a remote area. The longer it took, the less we were gonna have of him to find.

[00:06:42] Steve: The police arrested a Roy Pearce on the 19th of July, which was actually Tom's 50th birthday. They had found personal possessions of his in Tom's van and enough evidence to be sure they had their man, even though they hadn't yet found Tom.

[00:07:01] David: They actually captured Pearce on at his sister's house hiding under a bed. He didn't tell anybody anything until the 7th of August. 

[00:07:11] David: There was a slight bit of relief, but we found out what had happened, and there was a lot of numbness and shock and disbelief. You hear about things like that happening, but they always happen to somebody else. They happened to other people. And this time it didn't happen to other people. It happened to my dad. once the shock and the numbness wear off, there's a hell of a lot of anger. A lot of anger. I tried to figure out ways how to bail him outta jail 'cause I was gonna take care of it myself. 

[00:07:46] Steve: However, the police had still not located Tom's body. Only Pearce knew where he was.

[00:07:54] David: They kind of bluffed him a little bit. They made out like they had the body, they had the weapons, they had everything. And so they led him to believe that. So he went ahead and one of the things they told him to do was confess to everything that you did. Write it out in a statement. Draw a map to where you took him, where you left him and what happened. And on that, they used the map that he drew, and it took 'em until the ninth to find the body to find dad's body.

David describes what happened

[00:08:27] Steve: As tough as it may seem, David felt it was important to share the details of that day for reasons that will become evident later. 

[00:08:47] David: Roy Pearce had been waiting and trying to carjack somebody at a grocery store called Foodland in Ashland on 13th Street, which was right next to Shamrock Liquors. And he had been living in the woods because his estranged wife had thrown him out.

[00:09:06] David: But unbeknownst to her, he had been living in the attic of their house and coming out after they left. He had a coffee can that he kept up there, that he would use the bathroom in and wait until they were gone and he would empty it, put it back up there and leave. 

[00:09:26] David: Right before dad got there, someone had called the police because he had just tried to open the door of a teenage girl that was driving by. And luckily, her door was locked, and she was able to drive off, and she got someone to call 911, send the police over there, but by the time they got there, it was too late. 

[00:09:45] Steve: Unfortunately for Tom, before any police could arrive, Pearce had then turned his attention to him.

[00:09:52] David: He pistol-whipped him, walked up behind him and hit him in the head with a nine millimeter and fractured his skull. And drove to an abandoned industrial park on the Boyd Greenup County line. And basically, he was far off the road. He got him out of the vehicle and tied him up to a tree. On his way out, he got the van stuck in the mud and just absolutely had a meltdown.

[00:10:21] David: He came over there and was shooting near his legs while he was sitting there tied to the tree. And my dad had a ruptured disc in his back. So whatever was happening, I'm sure he was in excruciating pain. And before he left and got stuck, he told him, he said, "Wait till I get gone and start screaming and somebody will find you". But after that happened, there seems to be some controversy on whether or not he was shot in the leg. I thought he was from the crime scene photos I saw of my dad. It looked like there was a spot on his left leg, left thigh that had a bullet hole and a blood patch. 

[00:11:05] David: And Dean Acres told me that he wasn't shot in the leg, so I'm not really sure. But Dean said after he shot near his leg, he walked up, stuck the gun behind his head and pulled the trigger. 

The trial

[00:11:18] Steve: Just a few months later, in December, Pearce went to trial. After much deliberating and support from the family, David decided to stay away.

[00:11:32] David: I was spared that. My stepmother and my step-siblings told me, they said, "Hey, you just stay where you're at. Do what you're doing, take care of your family. We've got this. If there's anything that needs your attention, we will call you". And to be totally honest with you, I, emotionally, I wasn't able to do it anyway. At that time, it was beyond my abilities.

[00:11:58] David: When I saw the news clips, they walked him in handcuffed, in the orange jumpsuit, into the courtroom, and he just had a smirk on his face. Just a low-life piece of garbage. And come to find out that he should have never been outta jail at that point because in June of 94, he was arrested in the neighbouring county for armed robbery. And he had already just spent time for armed robbery and weapons charges. And he was supposed to still be on parole, but somehow back then, it never met up - they released him outta jail. They were allowed him to make bail, and then the rest is kind of history. 

[00:12:39] David: From my understanding, the guy was an avid drug user, methamphetamine, opioids, you name it. He was just a garbage head. You name it. He would take it. 

[00:12:49] David: He came in to plead guilty and to be sentenced. And that was part of his plea bargain. And during that time, my understanding is he tried to go back on his plea. And they said, okay if you wanna go back on your plea, we're going for the death penalty. We have the body. We have everything. Apparently, his attorney told him, "You do not want to take this to trial. They have everything. You drew the map to where the body was found. There's nothing in this for you. Take the deal". And he ended up taking the deal and going to prison.

[00:13:24] Steve: So Roy Pierce had entered into a plea bargain with the prosecutors. In the United States, this is a very common occurrence. A plea bargain is where the defendant agrees to plead guilty in return for more lenient sentencing.

[00:13:40] Steve: In this case, Roy Pearce would agree to show the police where Tom lay, and in return, amongst other things, he would avoid the death penalty.

[00:13:49] 

[00:13:50] David: At that point, if he would've went to trial and was found guilty, they were gonna go for the death penalty, which there's a good possibility that if they would've gotten the death penalty twenty-seven, twenty-eight years later, he still might not be, have been executed. It goes through a process, appeals process that it's very lengthy and what wound up happening is his plea deal was he was to receive twenty-five years to life.

[00:14:17] David: Life in America is roughly, you'll have the chance for parole at roughly between twenty and twenty-five years, but no chance of parole, twenty-five to life means you gotta serve twenty-five years before you're even eligible. And he had to put on about a year and two months. He had to finish serving from his armed robbery conviction because he had violated his parole.

[00:14:43] David: So they added that to the sentence, and after that, decided or he came up for parole. And what they end up offering him, and he agreed to, was no chance of parole for twenty-five years. And his sentence could go all the way, depending on his behaviour, depending on what was discovered and discussed in the future at his parole hearing. It could go from set free at that point, a five-year deferment, a ten-year deferment or a serve-out.

[00:15:18] David: And so basically, that's pretty much it. You're gonna be here at least twenty-five years and possibly the rest of your life.

The 26 years from trial to parole hearing

[00:15:25] Steve: So at least the family knew that they could try and move on privately for at least twenty-five years before the issue of Roy Pearce would come back to the fore. David was twenty-four years old, and as we know, twenty-four to fifty is a key period in anyone's life. So how did that turn out for David?

[00:15:45] David: To be honest with you, I tried to block everything out, not think about it. It was a hard thing not to think about. Up until the point of the parole hearing, when I would talk to people about this, actually I really just didn't talk about it until the parole hearing came up. And people that have known me for years said, "Man, I didn't know that". And it was just totally amazing to them to sit and hear me tell the story of what happened. And the reason I did that was I took a petition to get people to sign it to keep him in prison. But up until that point, I just didn't deal with it at all. And, there was times when I would drink, and a lot of these things would come up, and I just didn't deal with it.

9th November 2020 - the parole hearing

[00:16:30] Steve: Well, fast forward to the 9th of November, 2020, twenty-six years later, and inevitably it was time for Pearce's parole hearing. David and his family had tried to move on, but now it was time to very much look back and revisit the events of 1994. David told me about the parole hearing.

[00:16:52] David: They give you an opportunity to talk. It was during Covid, so everything was done telephonically. He wasn't involved in this part of the parole hearing. You had four phone lines you could call into the parole board. You had a line at my step-mother's house where a stepsister and a step-brother was there talking to him.

[00:17:14] David: Less and Rusty and Rita. Rita is my stepmother's name. Rusty's my stepbrother, and Less is one of my stepsisters. And they were there at that one. Then you had, at the prosecutor's office, you had all the people that worked in the prosecutor's office there, the District Attorney, they call 'em Commonwealth's Attorney in Kentucky, Rhonda Copley, the victim's Advocate Attorney.

[00:17:39] David: But then you had Melissa Lambert, who was actually working in the office when Dad's case was going on, and she had left and come back. They were at one location calling in. Dean Acres is another one. Officer Brent Caldwell, he was at another location calling in. Then at here, at my house, you had myself, my sister and my stepsister Melanie, her son Shane, his girlfriend and kids and stuff. They were all here at my house, and we were doing our part here. 

[00:18:14] David: So we had all four lines utilized, and the parole board said it's very unusual to have this many lines in on a parole hearing. And it says it speaks volumes. And she said it really is unusual to have the prosecutor's office and the investigating detective in on this as well. And Dean, he was the one that actually found Dad. So we did our part, and it probably lasted an hour to an hour and a half, and it felt like it lasted much longer. So I left out of there feeling as good as you could feel about something. But I had another reason too. My daughter-in-law was in the hospital about to give birth to my grandson. We had two blessings that day.

[00:19:06] David: We had to state the case and go through all the facts, but to hear the people that were actually investigating it, to hear the person that, which I had already talked to Dean, and I'd already talked to Brent Caldwell before that. So I was pretty much braced to hear what they were gonna say. Unfortunately, I don't know why I didn't do it, but I didn't brace my sister for it. I didn't even think to, and it was something extremely difficult for her to hear. 

[00:19:40] David: And then a year later, when we went through all the other stuff, that's when I accidentally saw the pictures. Wasn't really trying to, didn't want to, but it was just something that happened. And, it seemed every time that we go through this, I find out something new that was worse than before. But it's something that I can share with somebody else that helps them, and when it helps them, it actually helps me heal a lot too.

[00:20:08] Steve: Just before we hear the outcome of the parole hearing, it's important to understand the options available.

The parole hearing outcome options 

[00:20:14] David: There's four possibilities that could happen during the parole hearing. He could be set free. He could have a five year deferment and come up for parole again and again, five years, a ten-year deferment, same thing, parole hearing in ten years, or he can get a serve-out, never comes up for parole, finishes out his sentence, the rest of his natural life. 

[00:20:38] David: And that's what we wound up getting. The parole board said, "Look, you guys did fantastic. You came up here and you stated, and along with the police department and his own criminal record established his criminal history". We helped establish the heinousness of these crime along with the police department. The devastation it caused for family and people that he knew and worked for. Because it really threw a lot of people in a bad spot. 

[00:21:12] David: And then his own actions, while he was a prisoner really helped seal his fate on that. He proved that what they already knew was true, that he was just a slimeball and didn't deserve to be amongst people.

However, Lelia Vanhoose steps in - no life on first-time parole hearing

[00:21:28] Steve: Now, that really should have been the end of the story. Pearce locked up to the end of his natural life. However, it wasn't, and into the story comes a certain Lelia Vanhoose. She, was the chairwoman of the Kentucky Parole Board. 

[00:21:44] Steve: In April of the following year, Vanhoose signed a directive that prohibited inmates serving life to receive a serve-out at the first attempt, and it was to be retrospective.

[00:21:57] David: On April the first of 2021 is when she signed this. May the 20th, the Commonwealth Attorney's office, it was Melissa Lambert who sent me an email and in the subject line had Roy Pearce's name on it, and the email said, call me as soon as possible.

[00:22:19] David: That's all it stated. I didn't get it until the next morning around six o'clock. Then there was about a three-hour window before the prosecutor's office opened up, and the time I was spending there at work. And so I just started doing some little bit of iry. And she decided to make it retroactive.

[00:22:50] Steve: Let's just spell out that devastating news a second. Lelia Vanhoose had signed a directive that effectively overturned the ruling of the previous parole board hearing that David and his family had painstakingly sat through. Roy Pearce will get another chance of parole.

[00:23:09] David: And it was gonna give 44 killers new parole hearings, including Roy Pearce. And there's one guy named Claver Jacobs. He gotta serve-out eighteen years prior. He had kidnapped, abducted, a girl from Alice Lloyd College. Her name was Judy Ann Howard. And he sexually assaulted her and beat her up. The man was evil.

The petition

[00:23:34] Steve: Not surprisingly, David was not prepared to sit back on this one, and he got going.

[00:23:42] David: While I was on the phone with Melissa, I asked her if she would be able to email me a list of all the prosecutors in all the counties that had cases affected by this. Give me the victims' names and the murderers' names. And within an hour, I had that list. And so I started calling all the prosecutors.

[00:24:10] David: I started calling the governor's office. I started calling the Attorney General's office. All these people in Kentucky I started calling, just cold calling. It was a lot of, I don't know if you'll be able to understand this old Appalachian saying but, "Hey brother, I feel for you, but I can't reach you". They understood what I was saying, but there was nothing they could do. And each time I would call somebody, they would say try this person. Try this person. So each time I'd make a call, I would get a new name to call, and they're like, "Our hands are tied at this office, but we're behind you a hundred per cent. Keep doing this". And I would call the governor's office. 

[00:24:51] David: And after hours of doing that, I went to the gym, and I met a friend of mine by the name of Thomas McNealy. We were sitting there talking, and I was talking about getting another petition going. And he said, "Why not do it online? You could cover more ground".

[00:25:06] David: I said, "Because I'm pretty ignorant on this stuff, and I don't know how to do it". He said, "I'll do it". And he set it up and it was on Change.org and we called it Justice for Tom Toney. And we put it out there and within a month had well over 500 signatures. And during this time, I was still making phone calls. 

[00:25:28] David: And I called a representative, the state rep for Boyd County, Kentucky, Scott Sharp. I called his office, and on the third time I called, I spoke to his assistant and told her, I said, ma'am, I said, I don't know if Representative Sharp is looking into this doesn't know about this or just doesn't give a damn. I said, but I have not heard shit in two weeks.

[00:25:53] David: And she assured me that representative Sharp cared deeply about this case. I went back to the gym that afternoon and while I'm on the treadmill, my phone rings, and it's Representative Sharp. And he said, "Mr Toney", he said, "I'm sorry I've not got back in touch with you since the first time you called".

[00:26:14] David: He said, "But I have been extremely busy on this". He said, "My best friend's name is Don Howard", which is Judy Ann Howard's brother, the girl that was abducted at Alice Lloyd College. And he had been working, trying to stop the parole hearing that was about to happen in August. And through he and I having multiple conversations after that, and Don and I having conversations, he had asked me if I would be willing to come to the state capital in Frankfort, Kentucky, to talk to the House and the Senate about this directive.

[00:26:51] David: And during all this time that I'm doing this, I'm calling people, and I'm being a real pain in the ass to a lot of people. Some knew me. Some didn't. But it wasn't long until they all knew me. And I spoke to a lady by the name of Brittany Scordo in the Fayette County Commonwealths Attorney's Office, she was a victim's advocate attorney, and she said, "I got a phone number I want to give you". 

[00:27:18] David: And I said, "Okay". And she gave me the phone number. She said, "This lady's name is Dr emily Bonistall Postel. She said, "I think you guys will have a very interesting conversation". And my first thought was, "Oh gee thanks. It's a grief counsellor". I appreciate the thought, but I got work to do. But then I went and I called that number after we hung up, and the lady answered the phone. I said, "Is this Doctor Emily Postal?" And she says, "Yes, who am I speaking with?" And I told her what my name was, David Toney. She said, "How funny".

[00:27:54] David: And I said, "What's funny about it?" She said, "You're on my call list for this afternoon. I was going to call you". And she said, "You've been stepping on a lot of toes in Frankfort". And I said, "Good". She said, "No, it's great that you're doing this". She said, "There's some things we're working on with the Attorney General that we hope it can stop this, but what you're doing is really paying off. And so there was two other Commonwealth Attorneys, Jackie Steele and David Dalton, along with Attorney General Daniel Cameron filed a suit against the State Board of Corrections. 

[00:28:33] Steve: So David's dogged persistence and sheer hard work had made the difference. A suit had been filed against the State Board of Corrections with the objective of reversing their ruling that prisoners could not be given a serve-out sentence at their first parole hearing. If successful Roy Pearce would stay behind bars for good.

 Suit is filed against Board of Corrections

[00:28:58] David: They violated the Kentucky State Constitution, violated our constitutional rights because of Marsy's Law, which a few years earlier had been adopted to the Constitution, which is an enforceable crime victim's Bill of Rights, basically in the Constitution that now not only does the accused and the criminal get these guaranteed constitutional rights, now the victims get those rights, and the representatives do as well. 

[00:29:29] Steve: On the 23rd of June, there was a breakthrough.

Lelia Van Hoose is fired, David suspects political shenanigans

[00:29:33] David: The news was broke and the Louisville Journal Courier-Journal at about 1:23 in the afternoon that the governor has replaced Lee Lelia VanHoose, or Lelia Lee VanHoose as the chairperson of the parole board and named another person to the parole board and informed the citizens of Kentucky that once her term was over, she would not be retained. 

[00:30:04] David: So they called it firing her, but in the way I view somebody being fired, security boxes up the little box of their stuff and walks 'em out. That didn't happen, but she lost her job. You know, this governor, his dad was the one that appointed her. Some twenty-some odd years prior to that when he was governor. So basically, in my opinion only, I can't prove it, my she floated a political trial balloon, and if it didn't work, she was gonna fall on the sword for the governor. That's my opinion. I don't want anybody to say that you're spreading disinformation. That's my disinformation. 

Directive overturned

[00:30:43] David: But on July the first, which happened to be my son's birthday as well, they made the announcement. I got a phone call. Let me throw this lady's name out there, Denise Durban. I worked with her. She is the victim's Advocate Attorney in Daniel Cameron's office at the AG' s office at Kentucky in Frankfort. She called me. She said, "Are you sitting down?" I said, "Yeah". I said, "I actually, I just got out to my car". And she said, "There has been a deal made on the lawsuit that the two Commonwealth Attorneys and Daniel Cameron filed. And they have made an agreement that if they dismiss the lawsuit or if they drop the lawsuit, they will drop the new directive that was giving everybody new parole hearings". 

[00:31:35] David: And the reason they did this was because they never asked anybody for input that was affected by these cases. They never notified that they were doing this. And I actually got a copy of the lawsuit later. And one of the things that Lelia Vanhoose did while she was trying to come up with the way to craft this memorandum, this new directive, was she went to other states in the US to try to find out what's the best way to circumvent the Kentucky Constitution on Marsy's Law. 

[00:32:17] David: When she couldn't find out that way, she actually went, this is alleged in the lawsuit, she contacted people in foreign countries to try to figure out how to circumvent the state constitution. And when she couldn't do that, she did it anyway. And to me, it just takes a damn set of eggs on you to do that, knowing that you have to answer to somebody if it blows up. So that makes me think that maybe there was something else at play there. 

[00:32:47] Steve: So, just to recap there a second: the deal was struck that if the lawsuit filed against the State Board of Corrections was dropped, the new directive would be dropped as well. Criminals like Roy Pearce would no longer be given a second chance. He was locked up for good.

[00:33:06] Steve: Now, you may have heard Marsy's Law mentioned a couple of times. Success was achieved with the help of Marsy's Law. Let David explain how that came about. 

Marsy's Law

[00:33:18] David: Marsy Nicholas, she was stalked and murdered by her ex-boyfriend back in the eighties out in California. Her brother is the one behind Marsy's Law. He He and his mother, his family, were in a grocery store. They stopped to get bread, and I think it might have been after the funeral, but the guy had been let outta jail. And while in the grocery store, they ran into each other. 

[00:33:45] Steve: And that was too much for Marsy's brother. He set about forcing a change in the law. The outcome was Marsy's Law.

[00:33:54] David: It's the right to confer with the prosecution. Victims have the right to be free from intimidation and harassment and abuse throughout the criminal justice system, whether it's by law enforcement, whether it's by the accused, whether it's by family members.

[00:34:11] David: You have the right not to go through that. You have the right to be present at all proceedings where the defendant has the right to be present. In our Constitution, we have the right to face our accusers. Now with this, we have the right to be there and face the people we're accusing, which is big. The right to be heard and, when relevant at all critical stages, the right to speak and let the justice system hear us. The right to be informed of all proceedings, bail hearings, parole hearings, or if the person escapes or if they pass away, or any change in status period. 

[00:34:48] David: The right to a speedy trial. That means we don't have to sit there and go through this and be drug through this emotional wreckage, time after time, for years. We have the right to get it over with. The right to restitution. If somebody wronged us in a way that it has financial damages, we can be made a whole on.

[00:35:08] David: The right to be informed of all the rights that are conveyed to the victim. And Marsy's law, once it's put into place into the state Constitution like it is in Kentucky, they can't say, "Oops, I forgot to contact you". They have to do it, or they have to go get 'em and start it over. There is a price to pay for the law enforcement agencies that do not adhere to this. Lelia Vanhoose, she lost her job. She didn't lose her pension. She still has that. At least she's no longer in a position to where she can do that to other families. 

[00:35:44] Steve: And so, just to be clear how this helped in the case of Tom Toney:

[00:35:48] David: Marsy's Law is part of the Kentucky State Constitution, and the fact that they did not notify us that they were going to change status and did not allow us a chance to give input or a chance for us to be present when they did this, it was three different violations of the constitutional rights guaranteed by Marsy's Law.

[00:36:10] Steve: David now lives in Tennessee and is working with the Marsy's law team to help get Marsy's Law passed there, so it can join Kentucky and the other states where Marsy's law is passed: California, Florida, Georgia, Illinois, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota and Wisconsin.

[00:36:34] David: All these have Marsy's Law in their state constitution. Tennessee, we're working here in Tennessee to get it there. Because what I just read to you is basically part of Marsy's Law, but it's the Crime Victims' Bill of Rights here in the Tennessee constitution that was passed in 1998. 

[00:36:53] Steve: Tennessee has a Bill of Rights, which should do the same job as Marcy's Law.

[00:36:58] David: The way they do a constitutional amendment here in Tennessee is it's gotta go before the subcommittee, and it's gotta pass to get out a subcommittee. Then it's gotta pass to get out committee. Then it goes to the house floor. From the house floor, once it passes with the three-quarters majority, it goes to the Senate floor.

[00:37:18] David: Once it does that, with three-quarters majority in the year that there's a governor's race, it gets on the ballot. Now, I love that our constitutions, whether it's the federal Constitution or our state Constitution, is very difficult to change because it has to be well thought out before it makes it. This Crime Victim's Bill of Rights that was passed in 1998 passed with 88.8% of the vote.

[00:37:51] David: You're talking about 90% of the voters said, "Yeah, that's right. That should happen. That should be part of our constitution. That's a great bill of rights right there". There's only one problem. The Bill of Rights, if they honour what's on there, fine. That's the way it's supposed to work. But if they don't honour it, you have no legal leg to stand on. The only reason we could stop in Kentucky, what we stopped was because of Marsy's law being part of the state constitution.

[00:38:23] David: And after I got back and we had stopped that and I had been introduced to a lady by the name of Mary Anne Donovan, who was the state director of Marsy's Law in Tennessee. Dr Postel introduced me to her, and she and I had been talking, and from just what I had heard from her, I started calling, took it upon myself to start calling all of the no votes in the subcommittee because it had lost in subcommittee five to four.

[00:38:51] David: And I would tell 'em our story in Kentucky. And I asked one of the no votes assistance, I said, "What do we have in our state laws right now that would've prevented or stopped what we stopped with Marsy's Law up in Kentucky? And her answer to me was, "I think you know that answer already, or you wouldn't have asked the question". And I'm like, "Well, actually, I didn't know. I was really pretty ignorant on it, but what you told me everything I need to know". I said, "I appreciate your honesty, whether you meant to or not". 

[00:39:24] David: And, I've been calling and meeting and ever since. I've talked to Lowell Russell, who was the, at the time, the representative that represented Loudon County, Monroe County, but due to redistricting, Lowell is not going to be representing us anymore. Lowell was a no-vote. He said he had always told people if they could get both of his prosecutors on board with it, that he would support it. But he told me, after listening to my story that if I could get one of them, he would support it.

[00:39:59] David: There's only one problem with that. It's that great Bill of Rights that was passed in the state constitution. He knew damn good and well that not one of these folks were gonna talk to me. The one that was being primaried had another person of the same party running against him in the primaries.

[00:40:17] David: He talked to me until he won the primary and after the primary was over, I've not heard back from him. His name is Steven Hatchett. Russell Johnson is the prosecutor for Loudon County. Russell Johnson in over a year has never returned my phone call, and I'm not going to try to guess why he's not returned it, but I'm just gonna state the fact that he hasn't returned it. I'm not out to stomp on feet, kick shins. I'm just wanting answers. And one of the things that I've been told is that these folks are not behind Marsy's Law because it of forces their hand to do stuff, whether they've got the resources or not.

[00:41:04] David: And whenever they bring up some of their opposition to it, they say, but we're already doing this. Look at the Constitution, the Bill of Rights, the Crime Victims Bill of Rights. But in the next sentence, they come back and say, not only that, but it's to do what you're wanting us to do. It's gonna cost an additional 16 million dollars annually.

[00:41:25] David: So here's my question to 'em, " if you're already doing it, why in the hell is it gonna cost 16 million dollars to do what you're already doing?

[00:41:34] Steve: Well, the fight for Marsy's Law in Tennessee goes on and the work still goes on.

[00:41:41] David: I did an event with Marsy's Law here in Tennessee, not this past Friday night, but Friday before that on the 22nd. There's a place called Smoky Mountain Harley-Davidson. It's a motorcycle shop. They have a concert venue called The Shed. It's world-famous. People from England come over. People from Germany, people from Brazil and Argentina. And this was the last concert, outdoor concert of the season. And I was there with Marsy's Law. Well, we were giving out information about Marsy's Law, and we were talking with a lot of folks that have had similar stories to ours. 

[00:42:20] Steve: One lady, in particular, had approached David to share her story. Someone had broken into the house of her mother and brother. Her mother was beaten to death, and her brother was grossly violated.

[00:42:38] David: A week later, the guy got out on bail and showed up where she was working, waiting tables. She didn't know that he was out. Nobody knew. And that's why you need Marsy's Law because they would've been notified. And that was after the Crime Victim's Bill of Rights had been passed. So it's a great bill, but it's only good if you enforce it. 

[00:43:02] Steve: And that nearly brings us up to the present day. But there is one more twist that needs a mention. About the time of the Change.org petition, David was contacted by the killer's daughter. 

[00:43:16] David: She had left a comment on the petition. And she wanted us to know that her dad was a changed man, and she needed her dad, and her kids needed their grandad And we got got a dialogue going back and forth. And during that dialogue, I found out that the day she found this petition was the day that her brother was shot and killed by police officers in Louisiana. He pulled a BB gun out on them when they came to arrest him, and when he pulled that gun, they shot him. Basically, it was suicide by cop. 

[00:43:53] David: And she told me that she just wished she could be with her brother. She just couldn't do it anymore. She wanted to be with her brother. She sent that on the message on a Friday night.

Compassion

[00:44:04] David: I didn't see it till Saturday morning. The next day I got a hold of the police department in Eunice, Louisiana, and kinda explained to him what was going on and directed him to the petition. I said don't know how to get in touch with this girl. I don't know where she lives, but could somebody find out and do a welfare check on her?

[00:44:26] Steve: Yes. In case you think you might have misheard, David had the fortitude to be showing compassion towards the daughter of his father's killer in her time of need.

[00:44:38] David: About two hours later, there was another message that showed up on the message board said, "David, I'm okay. Thank you for sending people to check on me". She said, " I cannot believe somebody went through that much trouble to make sure I was okay". And all I had to do was make one phone call. To me, it wasn't a lot of trouble, but it gave me an idea of what this girl's life had been like. 

[00:45:02] Steve: And how is that relationship now?

[00:45:04] David: Very friendly. We check on each other. We make sure that each other's doing okay when we talk. If there's an issue that we will sit and try to make sure that each person's on the right. 

[00:45:17] David: Because of his actions, she went through an extremely rough life. And she had this romanticized idea about what it would be like growing up with a dad. She didn't have that. He was in prison, and I'm afraid even if he wasn't in prison, she wouldn't have had it either.

Tom Toney day

[00:45:34] Steve: There's one other thing we should mention as well. At a celebration dinner, there was a pleasant surprise waiting for David and his family.

[00:45:43] David: While I was there, I was interviewed on that Saturday morning by a man by the name of Charles Romans, who is a staff reporter at the Ashland Daily Independent. A reporter by the name of Kelsey Souto came down and she was the very first person to interview me and she stopped by on her way to work to say "Hi" and join in. And plus one of her colleagues from WSAZ in Huntington, West Virginia, was interviewing me that day as well. 

[00:46:14] David: After the interview, people kept setting stuff up, and I noticed they were doing stuff behind my back and in secret. And after we got done with the last television interview of the day, they called me back into the room where we were having the celebration dinner, and they brought my stepmother, Rita, and myself up to the podium and they read the declaration from Mayor Chris Perkins that on July the 31st of 2021, it was decreed that, it was Tom Toney Day in Ashland, Kentucky. Something that, that was pretty cool. I didn't know what was going on. I didn't know they even weren't doing anything like that. And it was and they said it was in honour of what I had done to help victims in the state of Kentucky.

[00:47:09] Steve: Now, Roy Pearce is locked up for good. David and his family once again have started the process of healing. Did this eventually bring any closure?

Closure

[00:47:21] David: Yes, it felt like a big weight had been lifted off our chest. We could breathe. We knew we didn't have to deal with him ever again. 

[00:47:30] David: You know, my family and I, we get to spend a lot of time together. We're gonna take a vacation in a couple weeks and Christmas shop for our grandbabies. We got two grandkids, my wife and I, and they've got me wrapped around their little finger. 

Reflection

[00:47:46] Steve: David then took time to reflect on how he survived the twenty-seven year ordeal and how he helps himself by helping others.

[00:47:57] David: People have to handle it in their own way. As much as you can stay involved, because I'll be honest with you, I couldn't stay involved until almost twenty-seven years later. I, I just wasn't strong enough emotionally and mentally to do it. But we went through the parole hearing. I got a little better. We went back and had to do everything again, pretty much. And I had to take on all these, I don't wanna say politicians, but I had to take on a bureaucrat's ruling. 

[00:48:33] David: But I had help. I had help with the Commonwealth Attorney and Attorney General, and I got a little bit better. Then I was able to tell my story to people here locally and explain why we need this here to go along with that Crime Victims Bill of Rights. I got a little better. 

[00:48:55] David: Each time I jump in there to help somebody else, I get more out of it than they do. And what I want to encourage is them to do the same thing that I'm doing: get involved to the extent that they can, and each time they'll feel, they'll be able to do a little more, and they will find out some things that's very tough to hear, and it'll knock 'em on their heels. But if they come back and do it again, then they will be able to get a little bit better each time.

[00:49:28] Steve: And where do you stand on the concept of forgiveness? 

[00:49:33] David: My Uncle Don and my Uncle Paul, the day of his funeral, it was the last time I talked to both of them. They both pulled me aside and hugged me, and said, "Son, you gotta forgive him, not for him, but for you". I ain't there yet, but I can show compassion for his daughter. I can show compassion for his grandchildren. Right there is the best I can do today. Maybe tomorrow I'll get there, but not today.

Helping Marsy's Law

[00:49:59] Steve: David wanted to share the story of his father Tom's death and the family's 27 year version of Hell, because he wanted to demonstrate the power of Marsy's Law, how it has helped them prevent the release of their father's evil killer, how it has helped other victims and their families, and how it has wrested control away from the politicians, the administrators, and the self-seeking. 

[00:50:26] Steve: And he wants everybody to help Marsy's Law get passed in every state of the United States of America. The website is Marsyslaw.us. You can check it out on the show notes. 

[00:50:38] David: It's got some really good information. If people wanna read that and go on there and sign a petition, they've got a petition you can sign, and the more we get that circulated, the better off it'll be.

Always remember

[00:50:49] David: I wish I had the names of all the victims that were involved in the cases up in Kentucky, mention a boy by the name of Scotty Baker, Judy Ann Howard we've mentioned and little five-year-old Alex Lesky. These are the people that I hope are remembered instead of the monsters that done that to em'.

[00:51:13] Steve: This is a story of tragedy, horror, despair. But also of the triumph of decent people over bureaucracy, of compassion towards others, and a reminder that life will go on and with the support of good people, there is always hope, there can always be a future. For David, he looks forward for the sake of his children and grandchildren: but he will always look backwards as well.

[00:51:40] David: I'm no expert on anything. I just show up and take care of what's in front of me each day, one day at a time.

[00:51:48]