BIRMINGHAM, Ala. (WBRC) - Toforest Johnson has escaped death before. At 17, he was shot in the chest in a drive-by shooting. Throughout his teens, seven people he knew were murdered, including his girlfriend. His abusive father once fired a shotgun at him while he ran away in fear.
After 21 years on Alabama’s death row for a crime he says he did not commit, Johnson is hoping to avoid death again. His attorneys have asked that his death sentence be vacated and Johnson receive a new trial, based on the prosecutor’s doubts about Johnson’s guilt and a $5000 reward paid to a key witness that only came to light this year.
The state has asked the court to deny the motion to vacate Johnson’s death sentence.
This case means that Jefferson County must once again face the possibility that it sent an innocent black man to death row. In 2015, Anthony Ray Hinton was freed after spending 30 years on death row for a murder he did not commit. In a strange coincidence, Toforest Johnson’s father, uncles and aunts grew up a block away from Hinton, in a poor, rural Jefferson County community called Praco, named after an old mining camp that closed in the 1950’s.
For Johnson, a hearing on June 6 is scheduled in Jefferson County court where his attorneys will argue that the Jefferson County District Attorney’s office committed what’s known as a Brady violation, a serious breach of prosecutorial duty. The Brady doctrine is based on a 1963 Supreme Court ruling that requires prosecutors to turn over any exculpatory information that might exonerate the defendant.
Attorneys for Johnson say throughout his trial and appeals, the state never disclosed the $5000 reward and denied that any records of it existed. That changed this past January when the Attorney General’s office finally produced the documents and said they weren’t turned over previously because the DA’s office had “misfiled” them.
In May, faith-based and justice advocates delivered a letter to District Attorney Danny Carr, asking him to support a new trial for Johnson. Carr was not DA when Johnson was tried and convicted, but the letter urged him to closely examine mistakes from the trial.
“We ask you to make the right choice, and separate the Birmingham of the past from the Birmingham of today,” the letter stated.
I reached out to Carr but he did not want to comment. The Attorney General’s office is representing the state in Johnson’s case and offered no comment on Johnson’s claims.
The allegations of prosecutorial misconduct are just the latest questions raised in the convoluted saga that led Johnson to death row. His attorneys and family called his conviction a gross injustice based on flimsy evidence and a weak defense by Johnson’s appointed legal team. They all believe he was wrongfully convicted for a crime that he was never involved in, but got swept up by the eagerness to punish someone for the murder of a law enforcement officer.
“I feel for the victim’s family,” Johnson’s daughter Shanaye Poole told me, “but we need to figure out who really did this. They got the wrong guy.”
THE CRIME AND INVESTIGATION
The 1995 murder of Jefferson County Sheriff’s Deputy William Hardy was horrific and mysterious. Hardy, who was 49 when he was killed, had worked as a deputy for 23 years, but held another job as a security guard to bring in more money for his family. On the night of July 19, he was working security at the Crown Sterling Suites Hotel in Birmingham. Sometime between midnight and 1:00am, Hardy was shot in the head execution-style in the hotel parking lot. There were no eyewitnesses to the crime and no weapon was ever recovered. A few hotels guests heard two back-to-back gunshots.
By all accounts, Hardy was a wonderful person: quiet, hardworking, loved. He left behind a wife, two children, four stepchildren, and an entire law enforcement community angry about his senseless death.
“We’re going to find those who have put you to this hard test,” Sheriff Mel Bailey told Hardy’s family during the eulogy, vowing to catch those responsible for his murder.
I left a message with a Hardy family member, hoping to talk to his loved ones about Johnson’s claims, but did not receive a response. I also reached out to the Jefferson County Sheriff’s Office, which released the following statement:
Deputy William Hardy was well-loved by his coworkers and Sheriff Mel Bailey. The entire Sheriff’s office was devastated by his tragic death. Hardy was a deputy for 23 years, and was a natural born peacemaker and crime fighter. He was dedicated to his job of protecting the citizens of Jefferson County which he was doing the night that he was killed. His death was emotional for his family and friends, and the only way everyone was able to get through it was by the support of the community he loved. Sheriff Pettway and our deputies ask for your continued support and prayers as we work through these trying times.
According to court records, Toforest Johnson said he was with his friend, Ardragus Ford, at a Birmingham nightclub when Hardy was killed. Ford was confined to a wheelchair after surviving a shooting and was driving his 1971 black Monte Carlo that night.
Three hours after the murder, Johnson and Ford had picked up two female friends and were planning to rent a room at the Super 8 Motel in Homewood when they were questioned by police in the parking lot. Police had responded to a call about a suspicious vehicle, and after searching the group and the vehicle, they released all of them except Johnson, who police arrested on an outstanding traffic warrant. He was taken to the Birmingham City Jail but got out a few hours later.
Court records state that a week after the murder, a teenager named Yolanda Chambers went to police. Chambers, 15 at the time, was one of the two female friends with Johnson and Ford when they were questioned by police hours after Hardy was killed. Chambers told police she was with the group and witnessed Hardy’s murder but would go on to change her story about who killed him countless times. The other female told police Chambers made up the story in pursuit of the reward money, according to motions filed by Johnson.
Nevertheless, police took Chambers at her word and arrested and charged four young men with capital murder, including Johnson and Ford. 18 months later, Chambers changed her story yet again and told police two of the suspects weren’t involved, so they released them and dropped the charges. That left Johnson and Ford in jail facing trial for Hardy’s murder, and both claimed they were innocent.
At a pre-trial hearing for Ford, Chambers changed her story yet again, admitting on the stand that she wasn’t there when Hardy was killed, and neither were Ford and Johnson. She testified that she made up the story because of pressure from the police.
Despite this, the charges against Ford and Johnson remained.
Johnson’s family members say at the time of his arrest, Toforest Johnson had been somewhat adrift: partying, detailing old cars, chasing women, but not doing anything dangerous. Johnson had a few arrests on his record for drug possession.
“Young guy trouble,” his Uncle Donald Johnson told me. “No violent crime, nothing with weapons.”
Toforest Johnson’s cousin, Antonio Green, remembers when Johnson was arrested. Investigators came looking for him at Green’s house in Pratt City where Johnson had been staying and said they wanted to question his cousin in a murder investigation. Johnson happened to call Green while deputies were still at his house and Green told him what was going on.
“He said, ‘I don’t know nothing about that, but tell them I’m up at Granddaddy’s house,’” Green remembered Johnson saying. “And that’s where they picked him up. Toforest didn’t have anything to hide.”
MISTRIALS AND CONVICTION
Johnson and Ford were each tried twice for Hardy’s murder. The first two ended in mistrials when the juries could not reach a verdict. In Ford’s second trial, the jury acquitted him of all charges and he is free today. Johnson was convicted in his second trial and sentenced to death. Much of the evidence against the two men was the same, with a few key differences in Johnson’s second trial that his current attorneys have argued amounted to a shoddy defense.
The case against Johnson was thin from the beginning. There was no physical evidence that tied him to the crime, and no eyewitness placed him at the scene. Johnson and Ford also had the same alibi, and as many as ten witnesses that saw them at a nightclub called Tee’s Place at the time Deputy Hardy was killed. His current attorneys say Johnson’s original lawyers hired only one investigator, who was so overcome with his own personal problems and incompetence that he did nothing to help Johnson’s defense.
What prosecutors did have was a witness named Violet Ellison who claimed that she overheard a phone call from the jail in which a man who identified himself as “Toforest” said that he killed Hardy. Ellison testified against Johnson but not against Ford.
The phone calls happened in August, 1995, when Violet Ellison’s daughter, Katrina had a boyfriend locked up in the Jefferson County jail who would call her to talk from the jail pay phone. They had an arrangement in which Katrina would make a three-way call for him, so he could talk to other friends without having to pay for a new call. She began doing this for other men incarcerated in the jail and testified that she connected several three-way calls for an inmate who said his name was “Toforest.”
Her mother, Violet Ellison claimed she eavesdropped on at least four phone calls between this man and other people, and in the first call she heard him tell a young woman named Daisy that he had had shot Hardy in the head. She also testified that he implicated one of the other men who was originally charged in the murder, but was later released.
During Toforest Johnson’s second trial, attorneys asked Ellison why she came forward with her story six days after the alleged phone call.
“Because I could not sleep at night,” Ellison testified. “My conscience bothered me.”
But Johnson’s current attorneys have argued Ellison only came forward after the Governor’s office announced a $10,000 reward, something the jury never knew because the prosecutors did not turn over that information to Johnson’s defense.
His current attorneys say if his defense team would have known about the reward, they could have made the case that Ellison had significant financial motivation to come forward with her story, which may have created doubt about Johnson’s guilt.
Toforest Johnson’s family attended both trials, and they remember feeling both incredulous at the state’s portrayal of Johnson and powerless to stop it.
“They wanted a conviction in this case and Toforest was their last shot,” said Elmer Johnson, Toforest Johnson’s Uncle.
The Johnson family was not well connected and could not afford expensive trial lawyers, but they noticed the differences in Johnson’s second trial that may have led to his conviction. His attorneys did not call many of the alibi witnesses from the nightclub and those they did put on the stand were not well prepared. They also did not call a witness from the hotel that heard the gunshots and saw a man who did not look like Johnson drive away in a vehicle that did not fit the description of the 1971 Monte Carlo Johnson was in that night.
Many of Toforest Johnson’s family members would have testified about his troubled upbringing and generational family alcoholism and abuse to try to spare his life, but they were never asked. The conviction and death sentence came fast. His mother, Donna Green, wept so hysterically when her son was sentenced to death that the judge threatened to remove her from the courtroom.
The family’s faith was shaken. They did not think the jury would convict Johnson and sentence him to death on so little evidence.
“We were all stunned, mouths wide open,” Antonio Green remembered. “Like, what just happened?”
WHAT LIES AHEAD
Johnson has a team of four pro bono attorneys from the Southern Center for Human Rights in Atlanta and University of California Berkeley School of Law. They are asking a Jefferson County judge to set his death sentence aside, because it “presents a special risk of wrongful execution.”
The motion filed in court focuses on former prosecutor Jeff Wallace, the lead attorney for the state in Johnson’s trial. Johnson’s attorneys argue that Wallace now has “grave doubts” about whether Johnson is guilty and has stated he believes Johnson should get a new trial. Wallace testified at a hearing in 2014 that the state’s case against Johnson was “not very strong because it depended on the testimony of Violet Ellison,” the woman who received the reward.
In addition, Johnson hopes to convince the judge that the Jefferson County DA’s office committed a Brady violation when it withheld the information about the reward, which could have changed the jury’s mind about Johnson’s guilt.
Attorney Ty Alper has worked on Johnson’s appeals since 2002 and said in a death penalty case with only one witness, the jury should know that witness was paid $5000 for her testimony and was motivated to come forward to get the money.
“All we are asking for is a fair trial for Mr. Johnson in front of a jury that hears all the evidence,” he said.
If Brady violations are proven post-conviction, they can turn over a death sentence or lead to a new trial. The case of Montez Spradley has incredible similarities to Toforest Johnson’s case. After Spradley was sentenced to death in 2008 for robbing and killing a woman, his conviction began to fall apart. Spradley’s attorneys learned the key witness against him had also been paid for her testimony, but it wasn’t disclosed to his defense team. Instead of retrying the case, the state offered Spradley an “Alford plea” also known as a “best interest plea,” which meant Spradley did not admit guilt, but still pleaded guilty in exchange for serving a few more years in prison. He was released from prison in 2015.
Danny Carr ran for District Attorney on a platform of reform. Advocates for Johnson point this out in the letter they sent to Carr and an opinion piece written by Scott Douglas, Executive Director of Greater Birmingham Ministries.
“Six months into his first full term, District Attorney Carr has an opportunity to stand up for fairness and transparency in the case of Toforest Johnson,” Douglas wrote.
Many of the questions surrounding Toforest Johnson’s conviction have been raised in appeals, which have not gone his way. The last time was in 2014 when Johnson tried to make the case that his original defense attorneys were ineffective. Jefferson County Circuit Judge Theresa Pulliam did not rule in his favor. In 2017, the U.S. Supreme Court issued a 5-4 decision that Johnson deserved a hearing on the possible Brady violation. He’ll go back before Judge Pulliam Thursday at 9:00 a.m.
His family hopes this time it will be different. In February, Johnson’s mother and younger brother visited him at Holman Prison for his birthday. Prison rules don’t allow family members to bring food or birthday cake, so Donna Johnson bought her oldest son Skittles and M&M’s out of the vending machine. They had a hopeful visit, but it’s hard to not worry that time is running out. When Donna hears about executions on the news, she thanks God it’s not her son.
“Sometimes I just break down and cry,” Donna Johnson said. “I just want him home.”
Antonio Green says his cousin’s case shows how poor people can get railroaded by the system when they don’t have the means to fight back. He hopes a new trial could help ease tensions between the black community and law enforcement in Birmingham.
“This is a great opportunity to bridge that gap, to show that we can all come together in solidarity to do what’s right instead of what’s convenient,” Green said. “Let’s let the criminal justice system redeem itself.”