With Newly Discovered Evidence of Prosecutorial Misconduct, Alabama Death-Row Prisoner Hopeful to Win New Trial

Alabama sen­tenced Toforest Johnson to death, his lawyers and nation­al experts say, because of pros­e­cu­to­r­i­al mis­con­duct, false eye­wit­ness tes­ti­mo­ny, and inad­e­quate rep­re­sen­ta­tion. In an ami­cus brief filed in a Birmingham tri­al court on December 12, 2019, the Innocence Project says, ​“If ever a case bore the hall­marks of a wrong­ful con­vic­tion, Toforest Johnson’s is it.”

Johnson (pic­tured cen­ter) was con­vict­ed in 1999 of mur­der­ing Jefferson County Sheriff’s Deputy William Hardy, who was work­ing off-duty as a secu­ri­ty guard. His con­vic­tion rest­ed on a stranger’s claim that, while she was eaves­drop­ping on a prison phone call, she had heard a voice she said was Johnson con­fess. Records lat­er revealed that, unknown to the jury, the wit­ness had been paid $5,000 for her tes­ti­mo­ny. The pros­e­cu­tion was 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.

Over the course of four tri­als of Johnson and his co-defen­dant, Ardragus Ford, Birmingham pros­e­cu­tors advanced at least five dif­fer­ent, con­tra­dic­to­ry the­o­ries of the crime, many of them based on the shift­ing tes­ti­mo­ny of a 15-year-old wit­ness, Yolanda Chambers. Chambers’ sto­ry changed numer­ous times after police repeat­ed­ly threat­ened her with impris­on­ment. Two oth­er wit­ness­es who refused to tes­ti­fy to the ver­sion of events police want­ed were jailed.

“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 inex­pe­ri­enced court-appoint­ed lawyer failed to mar­shal the avail­able evi­dence and he was con­vict­ed and sen­tenced to death.

Johnson’s sto­ry is not new to Alabama or Birmingham. As Washington Post colum­nist, Radley Balko, point­ed out in a September 2019 fea­ture on Johnson’s case, four peo­ple wrong­ly con­vict­ed and sen­tenced to die dur­ing for­mer Birmingham District Attorney David Barber’s 24-year tenure in office, and at least six who were wrong­ly con­vict­ed of mur­der, have already been exon­er­at­ed. Johnson’s case, he wrote, bears strik­ing sim­i­lar­i­ties to the case of for­mer death-row pris­on­er Montez Spradley, whose con­vic­tion for a 2004 mur­der was over­turned in 2011 by the Alabama Court of Criminal Appeals.

No phys­i­cal evi­dence linked either Johnson or Spradley to the crimes for which they were sen­tenced to death. In both cas­es, Balko wrote, ​“wit­ness­es came for­ward with damn­ing infor­ma­tion in response to a reward. In both cas­es, it seems safe to say that a con­vic­tion wouldn’t have been pos­si­ble with­out those wit­ness­es. In both cas­es, the wit­ness­es were paid, but the pay­ments were nev­er dis­closed to the defense or the jury. In fact, in both cas­es, the judge signed off on said pay­ments, yet nei­ther judge both­ered to noti­fy defense coun­sel. … [And i]n the inves­ti­ga­tions of both Johnson and Spradley, law enforce­ment offi­cials threat­ened wit­ness­es with incar­cer­a­tion and the loss of cus­tody of their chil­dren if they didn’t tell author­i­ties the sto­ry they want­ed to hear.”

Spradley’s tri­al judge was Gloria Bahakel, whose broth­er had sen­tenced Johnson to death. Spradley’s jury had vot­ed 10 – 2 in favor of a life sen­tence, but Judge Bahakel over­rode that rec­om­men­da­tion and sen­tenced Spradley to death. After win­ning a new tri­al, Spradley entered a no-con­test plea that ensured he would not face the death penal­ty again, secured his imme­di­ate release from prison, but fell short of a legal exoneration.

After recent­ly dis­cov­er­ing evi­dence of the wit­ness pay­ment, Johnson’s new lawyers from the Southern Center for Human Rights and the Death Penalty Clinic at the University of California, Berkeley School of Law are chal­leng­ing his con­vic­tion, and the tri­al court — now before Jefferson County Circuit Court Judge Teresa Pulliam — is con­sid­er­ing whether pros­e­cu­tors vio­lat­ed Johnson’s rights by with­hold­ing evi­dence of the pay­ment. Judge Pulliam held a hear­ing in June to deter­mine whether Johnson’s rights were vio­lat­ed by pros­e­cu­tors’ fail­ure to dis­close that Ellison would be paid reward money. 

Johnson’s daugh­ter, Shanaye Poole said she is hope­ful that her father will be grant­ed a new tri­al. ​“Finally we’re get­ting some trac­tion,” she said, refer­ring to cov­er­age in The Washington Post and The Appeal, and the inter­ven­tion of The Innocence Project. ​“Finally the world is able to hear my Dad’s sto­ry, and it needs to be heard.” 

“He’d rather think of the pos­i­tive out­comes than the neg­a­tive,” Poole said of her father. ​“That could eat away at a per­son, but I think he’s just main­tained his faith and he knows that he is an innocent man.”

For more details on Toforest Johnson’s case, read below:

On the night of July 19, 1995, when Deputy William Hardy was killed, at least ten ali­bi wit­ness­es placed Toforest Johnson and his friend, Ardragus Ford at a night­club on the oth­er side of Birmingham, Alabama. Phone records even showed Ford mak­ing a phone call at the time Deputy Hardy was shot. Hours after the shoot­ing, Johnson, Ford, and two girls were stopped and pat­ted down by police, osten­si­bly because of a report of a ​“sus­pi­cious vehi­cle,” though their car did not resem­ble wit­ness state­ments from the scene. 

Johnson was arrest­ed because of an out­stand­ing war­rant for a traf­fic vio­la­tion. The next day, police inves­ti­ga­tors ques­tioned Yolanda Chambers and Latanya Henderson, the two teenage girls who had been with Johnson and Ford on the night of the crime. They both told police they knew noth­ing about the crime, but police didn’t believe them. Police threat­ened to crim­i­nal­ly charge the girls for lying, but then let them go. 

Henderson told Chambers lat­er that day that she would not lie, even if it meant going to jail, but Chambers replied that she would rather lie than go to jail. Henderson lat­er told her sto­ry to police again, and was charged with hin­der­ing pros­e­cu­tion. She spent months in a juve­nile deten­tion facil­i­ty. Chambers told police she had infor­ma­tion about the mur­der of Deputy Hardy, but changed her sto­ry repeat­ed­ly. Despite her con­stant­ly chang­ing sto­ry, law enforce­ment moved for­ward with as a star wit­ness in the case. 

“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.”

Two oth­er men were held for 15 months as a result of Chambers’ accu­sa­tions, but pros­e­cu­tors ulti­mate­ly decid­ed to charge only Johnson and Ford. Both were pros­e­cut­ed for cap­i­tal mur­der and faced pos­si­ble death sen­tences, but no phys­i­cal evi­dence linked either man to the crime. 

Ford’s fam­i­ly was able to hire an expe­ri­enced attor­ney, Richard Jaffe, but Johnson was assigned an inex­pe­ri­enced court-appoint­ed attor­ney. During his inves­ti­ga­tion, Jaffe learned that Chambers had told friends she had false­ly impli­cat­ed the men. When he ques­tioned her dur­ing a hear­ing, she returned to her orig­i­nal ver­sion of events: she had noth­ing to do with the crime and didn’t know who did. When Jaffe asked her why she had pre­vi­ous­ly lied, she replied: ​“Because the pres­sure. They was telling me, you know, ​‘Don’t you know you can go to jail for this?’ And that’s all I was think­ing. That’s all I had put in my mind: Jail. I don’t want to go. So after they was putting all the pres­sure on me, I went on and said I was there … maybe if I go on and say I was there, maybe all the threats and every­thing will end.” 

Asked why she accused Ford and Johnson specif­i­cal­ly, she said, ​“Because, I mean, that’s what they want­ed to hear, that Ardragus was the one who killed the police officer.” 

On the basis of Chambers’ state­ments, Jaffe asked that charges be dropped, but the judge refused. Jaffe then secured an agree­ment from District Attorney David Barber to give Ford immu­ni­ty if he tes­ti­fied against Johnson, but Ford refused, say­ing, ​“Look, Mr. Jaffe, Toforest and I are close, but not that close. I see where they won’t charge me if I say he did it. If that were the truth, I would say it in a heart­beat. I would not lie for him and put my fam­i­ly through all these changes, includ­ing mon­ey to pay you to rep­re­sent me. But I am not lying for any­body, includ­ing the cops.”

At Ford’s tri­al, pros­e­cu­tors brought a sur­prise wit­ness, Carla Bowen, who said Ford had con­fessed to her. But a record­ed inter­view revealed that she had denied Ford said any­thing until police threat­ened her by say­ing she could lose cus­tody of her chil­dren for not com­ing for­ward soon­er. Ford’s tri­al end­ed in a hung jury, 10 – 2 in favor of acquittal. 

Johnson was tried next, with key tes­ti­mo­ny from Violet Ellison. Ellison was a friend of Hardy’s and came for­ward to police the day after the state announced a $10,000 reward for infor­ma­tion in the case. She said she had eaves­dropped on a prison phone call, and had heard a man iden­ti­fy him­self as ​“Toforest,” then admit he ​“shot the f — -r in the head” because the deputy was ​“mess­ing in my s – t.” The jury did not hear that Ellison’s tes­ti­mo­ny made her eli­gi­ble for the mon­e­tary reward. Johnson’s tri­al also end­ed in a hung jury, with a 10 – 2 vote for conviction.

When the men were retried, pros­e­cu­tors pre­sent­ed two con­tra­dic­to­ry the­o­ries of the crime, argu­ing sep­a­rate­ly that each man was the shoot­er. Johnson was con­vict­ed and sen­tenced to death. Soon after, Ford was retried and acquit­ted after his defense point­ed out the unre­li­a­bil­i­ty of Chambers’ tes­ti­mo­ny. The pros­e­cu­tion admit­ted that Chambers had lied 300 times. 

On appeal, Johnson chal­lenged his con­vic­tion on the grounds that the pros­e­cu­tion pre­sent­ed dif­fer­ing the­o­ries of the crime, but the Alabama Criminal Court of Appeals, exam­in­ing only the tri­al record from Johnson’s tri­al, unan­i­mous­ly denied the appeal, writ­ing, ​“There is no evi­dence in the record before this Court that the pros­e­cu­tor argued a dif­fer­ent the­o­ry of the mur­der at Ford’s tri­al. In fact, the record in Johnson’s case does not even reveal that Ford was ever tried for the mur­der of Deputy Hardy, much less that the pros­e­cu­tor tried Ford on the the­o­ry that Ford was the triggerman.”