Birmingham D.A. Files Brief Supporting New Trial for Death-Row Prisoner Toforest Johnson

Jefferson County District Attorney Danny Carr has filed an ami­cus brief sup­port­ing the grant of a new tri­al to Toforest Johnson (pic­tured, cen­ter, with fam­i­ly mem­bers), sen­tenced to death for the mur­der of an Alabama sheriff’s deputy. In a plead­ing filed in the Jefferson County Circuit Court, Carr wrote that, ​“A prosecutor’s duty is not mere­ly to secure con­vic­tions, but to seek jus­tice,” and that duty, he said, ​“requires inter­ven­tion in this case” on Johnson’s behalf.

Carr urged that ​“a court of com­pe­tent juris­dic­tion” should grant Johnson a new tri­al, out­lin­ing what he regard­ed as seri­ous defects in Johnson’s tri­al. He not­ed that dur­ing the course of mul­ti­ple tri­als of Johnson and co-defen­dants, pros­e­cu­tors had repeat­ed­ly changed their the­o­ry as to who shot the deputy, relied upon a wit­ness who repeat­ed­ly admit­ted hav­ing lied, and failed to dis­close evi­dence that the wit­ness had been paid for her coop­er­a­tion, and that defense coun­sel failed to present tes­ti­mo­ny from mul­ti­ple ali­bi wit­ness who would have said that Johnson was else­where at the time of the murder. 

Carr indi­cat­ed that he had con­ferred with the orig­i­nal lead pros­e­cu­tor from Johnson’s tri­al, who also ​“expressed con­cerns about this case and sup­ports this request.” That pros­e­cu­tor, Jeff Wallace, had pre­vi­ous­ly expressed ​“grave doubts” about the case, and tes­ti­fied in 2014 that he did not think the evi­dence against Johnson was strong.

Johnson has main­tained his inno­cence through­out his two decades on death row, but Carr’s brief did not take a posi­tion on Johnson’s guilt or innocence. 

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.

In March 2020, a Birmingham judge denied Johnson’s request for a new tri­al, say­ing he had not proven that his con­vic­tion was the result of pros­e­cu­to­r­i­al mis­con­duct. He had filed a Brady claim alleg­ing that pros­e­cu­tors know­ing­ly with­held evi­dence of the pay­ment that was giv­en to Ellison. 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, blam­ing the delayed dis­clo­sure on Jefferson County pros­e­cu­tors hav­ing ​“mis­filed” the records of the payment. 

Johnson appealed the deci­sion to Alabama’s appel­late courts, which now have juris­dic­tion over the case.

During his 2018 cam­paign for District Attorney, Carr pledged to ​“exam­ine post-con­vic­tion cas­es to iden­ti­fy and cor­rect wrong­ful pros­e­cu­tions,” includ­ing ​“pre­vi­ous­ly-imposed death sen­tences.” His office spent about nine months review­ing Johnson’s case before fil­ing the brief on June 12. 

Carr’s action places the District Attorney’s office at odds with the state attor­ney general’s office, which con­tin­ues to seek Johnson’s exe­cu­tion. ​“It’s real­ly sig­nif­i­cant because we asked District Attorney Carr to seri­ous­ly look at the evi­dence in the case, and he did,” said Ty Alper of the Berkeley Law School Death Penalty Clinic, one of the lawyers rep­re­sent­ing Johnson. ​“He spent almost a year thor­ough­ly review­ing the case. We’re grate­ful for the time he took and the seri­ous­ness with which he approached this case.”

Johnson’s daugh­ter, Shanaye Poole, expressed hope that Carr’s sup­port will bring her father clos­er to release. ​“There is no time like the present. I believe that, in the cur­rent cli­mate of the world, we are wit­ness­ing a renewed appre­ci­a­tion for jus­tice,” she said. ​“For now, we are press­ing for­ward more hope­ful than ever that my dad will return home.”