Supreme Court Denies Certiorari to Two Death-Sentenced Men with Credible Innocence Claims

On October 2, the first day of its new term, the Supreme Court denied review in two high-pro­file death penal­ty cas­es: Toforest Johnson and Robert Roberson. Both men have long main­tained their inno­cence and have gar­nered broad bipar­ti­san sup­port for their innocence claims.

In Alabama, Mr. Johnson’s con­vic­tion was large­ly based on an ​“ear­wit­ness” who received a mon­e­tary award after her tes­ti­mo­ny, a fact that was not revealed until sev­en­teen years lat­er. Mr. Johnson was con­vict­ed of the 1995 shoot­ing of Deputy Sheriff William Hardy, despite over ten eye­wit­ness­es plac­ing Mr. Johnson across town at a night­club at the time of the crime. Violet Ellison approached police after the State put out a $5,000 reward offer for infor­ma­tion on the case, and tes­ti­fied at tri­al that she over­heard a three-way jail phone call in which a man referred to him­self as ​“Toforest” and con­fessed to the crime. The State denied that Ms. Ellison received a reward for her tes­ti­mo­ny for almost two decades, until a retired employ­ee from the District Attorney’s office told Mr. Johnson’s defense team about a set of ​“con­fi­den­tial reward files” in 2018. The State then dis­closed a file con­tain­ing a $5,000 check made out to Ms. Ellison in 2001, claim­ing it had been ​“mis­filed.” Despite these facts, the low­er courts declined to find a Brady vio­la­tion, lead­ing Mr. Johnson to ask the Supreme Court direct­ly for Brady relief. Numerous Alabama legal offi­cials sup­port a new tri­al, includ­ing the cur­rent District Attorney, the orig­i­nal tri­al pros­e­cu­tor, a for­mer Chief Justice, and a for­mer Attorney General. Three of the orig­i­nal jurors also believe they con­vict­ed the wrong man. ​“The Supreme Court only reviews a small frac­tion of the cas­es that come to it,” said Ty Alper, an attor­ney for Mr. Johnson. ​“While we wish they had cho­sen to take a clos­er look at Mr. Johnson’s case, we are look­ing for­ward to return­ing to the appeal we have pend­ing in Jefferson County, where the District Attorney has already called for a new trial.”

In Mr. Roberson’s case in Texas, evi­dence has clear­ly demon­strat­ed that no mur­der occurred at all. Mr. Roberson was con­vict­ed of killing his daugh­ter, Nikki, based on the now-dis­cred­it­ed sci­en­tif­ic the­o­ry of ​“Shaken Baby Syndrome” (SBS). The the­o­ry held that a cer­tain con­stel­la­tion of symp­toms, includ­ing brain swelling and bleed­ing, could only occur through mali­cious shak­ing — in oth­er words, any child who died of these symp­toms had been mur­dered. Evidence now shows that numer­ous oth­er med­ical con­di­tions can cause the same symp­toms, includ­ing pneu­mo­nia and acci­den­tal falls; Nikki expe­ri­enced both in the days before her death. At least 32 care­givers con­vict­ed based on SBS have been exon­er­at­ed, and even the doc­tor who pro­posed the con­di­tion has renounced it. Dr. Norman Guthkelch called for a review of SBS con­vic­tions in 2012, say­ing, ​“I am frankly quite dis­turbed that what I intend­ed as a friend­ly sug­ges­tion for avoid­ing injury to chil­dren has become an excuse for impris­on­ing inno­cent peo­ple.” In his peti­tion, Mr. Roberson asked the Court to con­sid­er whether a con­vic­tion vio­lat­ed due process when the entire cau­sa­tion the­o­ry of the crime was under­mined by mod­ern sci­ence and med­i­cine, and when the habeas court ruled against the defen­dant based on out­dat­ed foren­sic the­o­ries. Physicians, sci­en­tists, fed­er­al judges, and inno­cence advo­cates joined in ask­ing the Court to grant Mr. Roberson relief. ​“Robert Roberson is an inno­cent father who has lan­guished on Texas’s death row for 20 years for a crime that nev­er occurred and a con­vic­tion based on out­dat­ed and now refut­ed sci­ence,” said Gretchen Sims Sween, Mr. Roberson’s attor­ney. ​“Robert’s legal team has been con­sid­er­ing remain­ing options, which now can and must be pur­sued in light of the U.S. Supreme Court’s deci­sion today to turn away from this righteous case.”