Alabama Appeals Court Rules Trial Court Did Not Abuse Discretion in Denying New Trial for Death-Row Prisoner Toforest Johnson

Ignoring entreaties from judges, prosecutors, and state bar presidents, the Alabama Court of Criminal Appeals has denied a new trial to death-row prisoner Toforest Johnson.

On May 6, 2022, the state appeals court ruled that Johnson (pictured, center, in a family photo) was not entitled to relief on his claim that prosecutors in his 1998 trial in Birmingham withheld evidence of a payment to a key witness in exchange for her testimony.

Johnson was convicted and sentenced to death for the murder of off-duty Jefferson County Sherriff’s Deputy William Hardy, despite the absence of any physical evidence connecting him to the crime. Ten alibi witnesses place him at a nightclub on the other side of Birmingham when the shooting occurred. His conviction rested on the testimony of a single witness, Violet Ellison, who claimed to have overheard a man who identified himself as “Toforest” confess to the crime, while she eavesdropped on a three-way prison phone call.

Ellison, who was a friend of Hardy’s, had never met Johnson and had never heard his voice before. She came forward to police the day after the state announced a $10,000 reward for information in the case. Records revealed that she was later paid $5,000 in reward money for her testimony, with her check issued care of then-Jefferson County District Attorney David Barber. In a June 2019 hearing in Jefferson County court, Johnson presented evidence documenting the payment, including copies of the check and a letter from Barber acknowledging that Ellison had come forward in an effort to collect the reward money and asking the state to pay her. Although both the prosecutor and the trial judge were aware of the payment, Johnson and his defense team were not informed about it until 2019 after the case had been transferred to the state attorney general’s office.

In an April 20, 2022 op-ed in the Alabama Daily News, former Alabama Supreme Court Chief Justice Drayton Nabers, Jr., a supporter of Alabama’s death penalty, questioned why Johnson was still on death row. “[S]upporting the death penalty shouldn’t mean ignoring signs that a person on death row may have been wrongfully convicted,” he wrote. “If we’re going to use the power of the state to execute someone, we should do everything possible to make sure that the person had a fair trial and that the evidence proves his guilt.”

The Alabama Court of Criminal Appeals did not address Johnson’s claim of innocence, saying that the only issue before it was whether the trial court had abused its discretion in finding that prosecutors had not withheld exculpatory evidence from the defense. The appeals judges ruled that the lower court’s findings that “the State did not pay the witness a reward until years after Johnson’s trial and … thus could not have disclosed the reward payment before trial” and that “the witness did not testify in the hope of a reward and … the State thus could not have suppressed that information” did not constitute an abuse of discretion.

Witness Intimidation and Presentation of False Testimony

Prosecutors charged Johnson and his co-defendant, Ardragus Ford, with Hardy’s murder. No physical evidence linked either man to the murder. Police investigators questioned two teenage girls, Yolanda Chambers and Latanya Henderson, who had been with Johnson and Ford on the night of the crime. After both said they knew nothing about the crime, police threatened to criminally charge them for lying. The girls were released but questioned again days later.

Henderson repeated that she knew nothing about the murder. She was charged with hindering prosecution and spent months in a juvenile detention facility. The 15-year-old Chambers told police she had information about the murder but repeatedly changed her story. Over the course of four court proceedings, prosecutors presented at least five different, conflicting accounts from Chambers on how the murder occurred. Ford’s family hired an experienced lawyer, Richard Jaffe, to represent him. Johnson, however, was assigned an inexperienced court-appointed attorney who failed to investigate the case. Jaffe’s investigation of phone records and witnesses showed that Chambers could not have witnessed the murder. When he confronted her with statements from friends that she had had admitted falsely implicating Johnson and Ford, she admitted that she knew nothing about the murder and had lied because she had been threatened with going to jail.

After Jaffe sought to dismiss the charges, Barber offered Ford immunity to testify against Johnson. Ford refused. Then, at Ford’s trial, prosecutors presented a witness, Carla Bowen, who falsely claimed that Ford had confessed to her. However, in a recorded interview, Bowen admitted that she implicated Ford only after police had threatened that she would lose custody of her children.

Support for Johnson’s Innocence Claim

Johnson’s pursuit of a new trial has drawn support from judges, prosecutors, and state bar presidents, including the former lead prosecutor on his case. In addition to his op-ed, Justice Nabers joined a brief with other former Alabama judges asking the Jefferson County Circuit Court to grant Johnson a new trial. In a March 2021 Washington Post op-ed, former Alabama Attorney General Bill Baxley wrote, “[a]s a lifelong defender of the death penalty, I do not lightly say what follows: An innocent man is trapped on Alabama’s death row. … Johnson’s murder trial was so deeply flawed, the evidence presented against him so thin, that no Alabamian should tolerate his incarceration, let alone his execution.”

Three jurors who voted to convict and sentence Johnson have also urged Alabama’s courts to grant him a new trial. One of the jurors, Monique Hicks said: “When you look back at all the stuff the jury did not know, I feel like we were used like pawns in a chess game, not even knowing we were being used. It is very disturbing to read all this now.” Juror Jay Crane said, “This is supposed to be an honest system. It’s supposed to work, and they (prosecutors) misled us. I am very disappointed. And I feel sad for the victim’s family because they haven’t gotten any justice. They don’t have the right person in prison.”

Current Jefferson County District Attorney Danny Carr, who was elected on a reform platform and, after reinvestigating Johnson’s case, filed a brief in the trial court in support of Johnson. Johnson’s lawyers argued that the court should have given great weight to Carr’s opinion because of his extensive investigation into the case.

Jefferson County has long been an outlier in its aggressive use of the death penalty. It has imposed more than 80 death sentences since capital punishment resumed in the 1970s and in the Death Penalty Information Center’s 2013 review of capital punishment practices had both more people on its death row and accounted for more executions than 99.5% of all U.S. counties. Two men wrongfully convicted and sentenced to death in Jefferson County — Anthony Ray Hinton and Wesley Quick — have been exonerated. Two others who are widely regarded to be innocent — Bo Cochran and Montez Spradley — overturned their convictions because of prosecutorial misconduct. Cochran was acquitted of murder charges on retrial but conceded guilt to robbery. Spradley pleaded guilty to lesser charges in a deal to secure his immediate release.