Commentary: Despite Strong Evidence of Innocence, Courts and Officials ​‘Pass the Buck’ Keeping Toforest Johnson on Alabama’s Death Row

The innocence case of Alabama death-row prisoner Toforest Johnson (pictured, center) has drawn substantial support from former judges, jurors, prosecutors, and state bar presidents, but disinterest by current Alabama officials has left Johnson languishing on death row. So argues journalist Radley Balko in his Washington Post column on July 28, 2022.

Balko’s column revisits Johnson’s case and details the evidence that strongly points towards his innocence. Advocating for a new trial, Balko argues that Johnson remains on death row because the responsible parties who could do justice in his case have instead abdicated their responsibility. “[T]he courts pass the buck to the politicians,” Balko writes, ”while politicians … claim that if prisoners like Johnson were really innocent, the courts would have freed them.”

Balko first wrote about Johnson’s possible innocence in 2019, and since that time, judges, prosecutors, and state bar presidents, including the former lead prosecutor on his case, have taken up his cause. Three of the jurors who voted to convict and condemn Johnson have urged the state to grant him a new trial. In his July 2022 article, Balko notes that Alabama officials who can help Johnson, like Governor Kay Ivey and Attorney General Steve Marshall, have shown no interest in doing so.

In May 2022, the Alabama Court of Criminal Appeals denied Johnson’s post-conviction petition, which alleged that prosecutors violated his constitutional rights. Based on this decision, Attorney General Marshall asserted that “[m]uch of the narrative that we see those that are advocating on behalf of this defendant were disproven in court.” Balko exposed this statement as false, explaining that the court’s decision did not decide the facts of Johnson’s innocence claim but addressed only one “narrow question” relating to whether the state’s failure to turn over evidence that a prosecution witness had been paid reward money for her testimony against Johnson violated his constitutional rights.

Balko argues that strict court post-conviction standards are premised on the idea that most post-conviction claims of miscarriage of justice “are better handled by the political process — by appealing to attorneys general to drop charges, or to governors to grant clemency.” However, state officials can act as they have in Johnson’s case, using court decisions as “cover to brush aside the very real possibility that the state is preparing to execute an innocent man.”

Johnson was sentenced to death in 1998 in Jefferson County, Alabama for the murder of off-duty Sheriff’s deputy William Hardy, despite there being no physical evidence pointing to Johnson. Ten alibi witnesses placed Johnson at a night club on the other side of Birmingham at the time of the murder. Johnson was appointed an attorney who expressed reservations about taking on a capital case. The attorney had limited funds and could only afford to hire an unlicensed investigator, who Johnson’s current attorneys say was an “alcoholic, racist, suicidal” man who had been recently fired from a capital case due to incompetence.

Further, Johnson’s 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. Johnson’s post-conviction attorneys argued that this violated Johnson’s constitutional rights because prosecutors withheld information about the reward payment from the defense. However, in May 2022, the Alabama Court of Criminal Appeals denied Johnson a new trial based on the trial court’s findings that no constitutional violation occurred because the payment was made after trial and the witness did not expect to be rewarded for her testimony. The court did not address the substance of Johnson’s claim of innocence.

Johnson’s pursuit of a new trial has garnered broad support. 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.” Current Jefferson County District Attorney Danny Carr also supported Johnson’s request for a new trial. One of the jurors in Johnson’s trial, 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.”