Alabama Judge Denies New Trial for Toforest Johnson

A Birmingham judge has denied a new tri­al to Alabama death-row pris­on­er Toforest Johnson (pic­tured, cen­ter), say­ing he had not proven his claim that his con­vic­tion and death sen­tence for the killing of a sheriff’s deputy in 1995 were the prod­uct of prosecutorial misconduct.

Johnson was con­vict­ed in 1999 of mur­der­ing Jefferson County Sheriff’s Deputy William G. Hardy. Over the course of four dif­fer­ent court pro­ceed­ings, the state pre­sent­ed at least five dif­fer­ent accounts of who com­mit­ted the killing. No phys­i­cal evi­dence con­nect­ed Johnson to the crime, and ten ali­bi wit­ness­es placed him at a night­club on the oth­er side of Birmingham when the shoot­ing occurred. Johnson’s con­vic­tion rest­ed on the tes­ti­mo­ny of one wit­ness, Violet Ellison, who claimed she had been eaves­drop­ping on a phone call her daugh­ter had placed to the prison and over­heard a man call­ing him­self ​“Toforest” con­fess to the crime. Prosecutors did not dis­close to Johnson’s lawyers or the jury that Ellison had been paid $5,000 in reward mon­ey for her testimony. 

Johnson’s lawyers first learned in 2003 that a reward pay­ment may have been made. The pros­e­cu­tion had been aware of the pay­ment and the tri­al judge, Alfred Bahakel, whose broth­er Jerry was a Jefferson County sheriff’s deputy at the time Hardy was mur­dered, approved the pay­out. Neither dis­closed the pay­ment to the defense. After 15 years of lit­i­ga­tion on the issue, the Alabama Attorney General’s office turned over doc­u­men­ta­tion of the reward pay­ment in January 2019. They blamed the delay on Jefferson County pros­e­cu­tors hav­ing ​“mis­filed” the records of the payment. 

In a June 2019 hear­ing in Jefferson County court, Johnson pre­sent­ed evi­dence doc­u­ment­ing the pay­ment, includ­ing copies of the $5,000 check and a let­ter from then-District Attorney David Barber ask­ing for the state to pay Ellison and acknowl­edg­ing that she had come for­ward in an effort to col­lect the reward mon­ey. Ellison tes­ti­fied that she was unaware of the reward until sev­er­al years after the tri­al, but Johnson’s lawyer, Ty Alper argued, “[t]he State does not just call you out of the blue, years after tri­al for no par­tic­u­lar rea­son and tell you, we’d like to give you $5000 for this tri­al that you tes­ti­fied in three years ago.” 

In a March 16, 2020 order, Judge Teresa Pulliam cred­it­ed Ellison’s tes­ti­mo­ny, describ­ing her as ​“well-dressed” and ​“artic­u­late.” Ellison’s tes­ti­mo­ny, she wrote, out­weighed the evi­dence pre­sent­ed by Johnson’s attor­neys. His lawyers said they would appeal the court’s ruling.

Johnson’s case has attract­ed nation­al atten­tion as part of a pat­tern of mis­con­duct by Jefferson County pros­e­cu­tors. In 2014, Jeff Wallace, the state’s lead pros­e­cu­tor, said, ​“I don’t think the State’s case was very strong, because it depend­ed on the tes­ti­mo­ny of Violet Ellison.” Johnson’s lawyers point­ed to incon­sis­ten­cies in Ellison’s sto­ry, which did not match the phys­i­cal evi­dence in the case. 

Over the course of four tri­als of Johnson and his co-defen­dant, Ardragus Ford, Birmingham pros­e­cu­tors advanced at least five dif­fer­ent, con­tra­dic­to­ry the­o­ries of the crime, many of them based on the shift­ing tes­ti­mo­ny of a 15-year-old wit­ness, Yolanda Chambers. Chambers’ sto­ry changed numer­ous times after police repeat­ed­ly threat­ened her with impris­on­ment. Two oth­er wit­ness­es who refused to tes­ti­fy to the ver­sion of events police want­ed were jailed. In an ami­cus brief filed in sup­port of Johnson in December 2019, the Innocence Project wrote, “[i]f ever a case bore the hall­marks of a wrong­ful con­vic­tion, Toforest Johnson’s is it.” 

During his cam­paign for office, Jefferson County District Attorney Danny Carr pledged to ​“exam­ine post-con­vic­tion cas­es to iden­ti­fy and cor­rect wrong­ful pros­e­cu­tions,” includ­ing ​“pre­vi­ous­ly-imposed death sen­tences.” He said his office is review­ing Johnson’s case. ​“At the end of the day, my dad is still inno­cent,” Johnson’s daugh­ter, Shanaye Poole said. ​“Our fam­i­ly is more deter­mined than ever to make sure the truth pre­vails and he comes home.”