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.