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.”