Former Alabama Attorney General, Appeals Court Judges Call for New Trial for Death-Row Prisoner Toforest Johnson

More than a dozen for­mer Alabama pros­e­cu­tors, judges, and state bar pres­i­dents have filed briefs in a Birmingham court call­ing for a new tri­al for Alabama death-row pris­on­er Toforest Johnson (pic­tured, cen­ter, with fam­i­ly mem­bers). The extra­or­di­nary fil­ings join Jefferson County District Attorney Danny Carr in sup­port­ing efforts by lawyers from the Southern Center for Human Rights, the University of California-Berkeley Law School Death Penalty Clinic, and the Innocence Project to free Johnson from what they regard as a wrong­ful cap­i­tal con­vic­tion and death sentence.

Former Alabama Attorney General Bill Baxley, one of the pros­e­cu­tors who is seek­ing to over­turn Johnson’s con­vic­tion, wrote in a March 9, 2021 Washington Post op-ed, “[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,” Baxley wrote.

Johnson has con­tin­u­ous­ly main­tained his inno­cence of the 1999 mur­der of Jefferson County Sheriff’s Deputy William G. Hardy. No phys­i­cal evi­dence con­nects Johnson to the crime and ten ali­bi wit­ness­es place him at a night­club on the oth­er side of Birmingham when the shoot­ing occurred. Over the course of four dif­fer­ent court pro­ceed­ings involv­ing Johnson or his co-defen­dant, Ardragus Ford, pros­e­cu­tors pre­sent­ed at least five dif­fer­ent, con­flict­ing accounts of how the mur­der occurred, based upon the shift­ing tes­ti­mo­ny of 15-year-old Yolanda Chambers, whom police had repeat­ed­ly threat­ened with impris­on­ment if she did not coop­er­ate. Two oth­er wit­ness­es who refused to tes­ti­fy to the ver­sion of events police want­ed were jailed.

Prosecutors also pre­sent­ed tes­ti­mo­ny of an alleged ​“ear­wit­ness,” 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. Ellison had been paid $5,000 in reward mon­ey for her tes­ti­mo­ny. Although the tri­al judge, Alfred Bahakel — whose broth­er was a Jefferson County sheriff’s deputy at the time Hardy was mur­dered — approved the pay­out and the pros­e­cu­tion was aware of the reward, nei­ther dis­closed the pay­ment to the defense or to the jury.

“All of the evi­dence, includ­ing phone records and wit­ness­es, clear­ly showed that [Chambers] couldn’t have wit­nessed the Hardy mur­der,” said Richard Jaffe, a defense attor­ney who rep­re­sent­ed Ford. ​“Her accu­sa­tions should have been painful­ly and obvi­ous­ly false.” Ford ulti­mate­ly was acquit­ted, but Johnson’s court-appoint­ed lawyer failed to mar­shal the avail­able evi­dence and he was con­vict­ed and sen­tenced to death.

“My con­clu­sion, beyond all shad­ow of doubt, is that this evi­dence should not have gone to a jury,” Baxley told the Associated Press. ​“It’s not suf­fi­cient to uphold con­vic­tion. My fur­ther con­clu­sion is that the guy is not guilty. The guy is inno­cent,” Baxley said. 

The brief of the for­mer pros­e­cu­tors, while not address­ing the ques­tion of Johnson’s inno­cence, urged that his con­vic­tion be over­turned. ​“The case of Toforest O. Johnson mer­its thought­ful recon­sid­er­a­tion,” they wrote. ​“Based on the sub­stan­tial evi­dence sup­port­ing Mr. Johnson’s inno­cence and right to a new tri­al, it would be uncon­scionable not to grant a new trial.”

A brief filed by for­mer judges of the Alabama Supreme Court and Alabama Court of Criminal Appeals and for­mer Alabama Bar Association pres­i­dents argued that ​“over­whelm­ing evi­dence casts seri­ous doubts over Mr. Johnson’s con­vic­tion. To pre­vent a rep­re­hen­si­ble mis­car­riage of jus­tice that may oth­er­wise lead to the exe­cu­tion of a like­ly inno­cent man, this Court should defer to District Attorney Carr’s rec­om­men­da­tion and grant Mr. Johnson’s [new tri­al],” they wrote.

In a sep­a­rate brief, the Innocence Project wrote, “[i]f ever a case bore the hall­marks of a wrong­ful con­vic­tion, Toforest Johnson’s is it.”

Johnson’s Family Continues to Press for Justice

Johnson’s fam­i­ly has long pressed his fight to prove his inno­cence. Johnson’s daugh­ter, Shanaye Poole, who was five years old when her father was sen­tenced to death, told The Birmingham Times, ​“It’s tough because you miss time with your father, you miss time with your fam­i­ly, some of the life lessons are stripped away from you pre­ma­ture­ly.” Her oth­er sib­lings and their chil­dren, she said, feel the same. “[My father] has grand­chil­dren he hasn’t seen aside from pic­tures we can send to him,” she said. ​“It’s been tough through the years. … I was con­fused as a child because I just didn’t under­stand, because we’re taught that jus­tice serves us all.”

Tony Green, Johnson’s first cousin, told The Times, ​“I love my cousin, we grew up togeth­er, there’s only two or three years dif­fer­ence between us in age. … I feel they have an oppor­tu­ni­ty to make an extreme wrong right. … We can’t get the time back” that has been lost to Johnson’s wrong­ful impris­on­ment, Green said, ​“and we real­ize that, but they can do as much as they can to make this sit­u­a­tion right by grant­i­ng his freedom.”