BIRMINGHAM, Ala. (WBRC) – The Alabama Court of Criminal Appeals has ruled against Toforest Johnson on a claim of prosecutorial misconduct, affirming a capital murder conviction questioned by an extraordinary array of leaders from Alabama’s legal community. The court emphasized repeatedly in its ruling released May 6 that the only issue it considered was a narrow one related to the $5000 reward payment the state paid its key witness in the 1998 trial. The reward payment was not disclosed to the defense until 2019.
The case is now one step closer to returning to Jefferson County Circuit Court, where District Attorney Danny Carr has requested a new trial for Johnson. Carr’s unusual request was based on a number of concerns about Johnson’s conviction, including that the trial prosecutors presented five different theories in five different court proceedings about who committed the crime. Carr spent almost nine months studying the case files, interviewing witnesses, and consulting with the family of Deputy Hardy.
Carr’s request for a new trial is joined not only by the lead prosecutor who convicted Johnson, but also former Republican Chief Justice Drayton Nabers, Jr., former Alabama Attorney General Bill Baxley, and many others.
Johnson’s legal team is optimistic despite the appellate court’s decision. “We remain hopeful that Mr. Johnson will receive a new trial in this case. All we are asking for is for the court to do what both the district attorney and the original trial prosecutor have requested, which is to grant us a new trial,” said Ty Alper, one of Johnson’s attorneys.
In 1998, Johnson was convicted and sentenced to death in Birmingham for the murder of Deputy Sherriff William G. Hardy, a crime he has always maintained he did not commit. At Johnson’s trial, prosecutors presented no physical evidence or eyewitness testimony. They relied solely on testimony from Violet Ellison, a woman who claimed she overheard someone who identified himself as “Toforest” talk about the murder on a three-way phone call from jail. Ellison had never met Johnson and had never heard his voice. Alibi witnesses placed Johnson across town at the time of the shooting.
At issue before the appellate court was a narrow legal claim about the State’s payment of $5000 to Ellison in exchange for her testimony against Johnson, which prosecutors did not disclose to Johnson’s defense attorneys until almost two decades after the trial. In 2019, the Alabama Attorney General’s office finally told Johnson’s attorneys about the $5,000 payment and turned over a copy of the check that it claimed had been misfiled all these years.
Friday’s ruling agreed with Jefferson County Circuit Judge Teresa Pulliam that Johnson had not established prosecutors committed misconduct in failing to disclose the witness’s financial motivation to testify. But the court said that for procedural reasons it could not consider District Attorney Carr’s position, or that of the Innocence Project, which also filed a brief in support of Johnson’s claim.
While the issue of the reward payment was pending in the appellate court, Johnson’s attorneys brought a new appeal in Jefferson County based on District Attorney Carr’s request for a new trial.
Johnson’s team argued that the court must give “great weight” to Carr’s position in the new claim, in light of his extensive investigation into the case. Carr filed a “friend of the court” brief in Judge Pulliam’s court in June 2020, writing that his “duty to seek justice requires intervention in this case.” Johnson has also been supported by an unprecedented eight “friend of the court” briefs, filed by some of Birmingham’s most prominent law firms, on behalf of former prosecutors, retired judges, faith leaders, defense attorneys, legal scholars, law students from all five Alabama schools. Three jurors who voted to convict Johnson have also called for the Jefferson County Circuit Court to throw out Johnson’s conviction.
Johnson must complete the appeals process on the claim related to the reward payment before Judge Pulliam can consider the new petition.
Beth Shelburne is an Investigative Reporter for the Campaign for Smart Justice with the ACLU of Alabama. She is a former WBRC Anchor, Reporter and Investigator.
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