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Hearing for man on Alabama’s death row seeking new trial ends with no decision

Toforest Johnson argues prosecutors withheld key information
Jefferson county courtroom was packed for Toforest Johnson's evidentiary hearing.
Jefferson county courtroom was packed for Toforest Johnson's evidentiary hearing.((Source: WBRC))
Updated: Jun. 7, 2019 at 1:00 PM CDT
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BIRMINGHAM, Ala. (WBRC) - A five-hour hearing for Toforest Johnson, a man on Alabama’s death row seeking a new trial, ended with Judge Teresa Pulliam saying she lacked jurisdiction to grant a new trial while Johnson’s mother sobbed in the courtroom. Pulliam is expected to consider the evidence that argues prosecutors withheld information about a $5000 reward payment to a key witness to determine whether the Jefferson County District Attorney’s office committed what’s known as a Brady violation.

The Brady doctrine, based on a 1963 Supreme Court case Brady v. Maryland, requires prosecutors to disclose any exculpatory evidence that could exonerate the defense.

Johnson, convicted in the 1995 murder of Jefferson County Sheriff’s Deputy William “Bill” Hardy, has spent 21 years on death row for a crime he maintains he did not commit. The only evidence tying him to the crime was the testimony of one witness who claimed she overheard a phone call from the Jefferson County jail in which a man who said “this is Toforest” admitted to shooting Hardy. Prosecutors presented no physical evidence connecting Johnson to the crime. His first trial ended in a hung jury and a co-defendant named Ardragus Ford was acquitted. Johnson maintains he was at a nightclub with Ford when the shooting happened.

The courtroom was packed for the hearing Thursday, which lasted five hours. Current Jefferson County District Attorney Danny Carr was among those watching the proceedings. Faith leaders have called on Carr to support a new trial for Johnson. So far, Carr has not commented. He was not district attorney when Johnson was convicted in 1998. The Alabama Attorney General’s office is representing the state in the proceedings.

Much of the hearing was dominated by the testimony of Violet Ellison, the witness who claimed she overheard the phone call that led to Johnson’s conviction. Ellison eavesdropped on the call because her daughter Katrina, who was 16 at the time, would sometimes place three-way phone calls for men incarcerated in the jail and Ellison wanted her to stop.

Violet Ellison, the key witness against Toforest Johnson, testified at the evidentiary hearing...
Violet Ellison, the key witness against Toforest Johnson, testified at the evidentiary hearing seeking a new trial.((Source: WBRC))

Ellison testified that she listened in on five or six calls and decided to contact investigators with the information she heard because her “spirit was troubled” and she couldn’t sleep. She testified that she didn’t know anything about the reward until 2001 when the DA’s office called her in to sign papers and she was paid $5000, three years after Johnson was convicted and sentenced to death.

Johnson’s attorneys argued it’s implausible that Ellison didn’t know about the reward, given the extensive media coverage of the murder and the fact that she personally knew the victim and his wife. Ellison said on the stand Thursday that Hardy lived near her mother, who would wave to him every day when he drove by her house. Johnson’s attorneys said this was the first time Ellison disclosed her mother’s connection to the victim, and argued this undermines her credibility. Assistant Attorney General Jon Hayden downplayed the significance of the revelation and argued that Ellison was not motivated to come forward by the reward.

Johnson’s attorneys say in 2003, they learned there may have been a reward paid. After 15 years of litigation surrounding the issue, the state never disclosed information about it until January, 2019, when the Attorney General’s office produced documents about the reward and said they weren’t turned over previously because the DA’s office had “misfiled” them.

Johnson’s attorneys also sought to undermine Ellison’s credibility by calling a long-time neighbor to the stand, Sandra Turner, who testified that Ellison is not a truthful person and she would not believe her testimony under oath.

On cross examination, Hayden tried to point out the “bad blood” between Turner and Ellison. The two women have lived next door to each other for 35 years, and Ellison’s granddaughter has a child with Turner’s son.

Johnson’s attorneys also presented documents which they say support the Brady claim, including a letter from former District Attorney David Barber to Governor Fob James, requesting that the reward be paid to Ellison and acknowledging that she came forward in pursuit of the reward.

Toforest Johnson with attorney Kathryn Miller.
Toforest Johnson with attorney Kathryn Miller.((Source: WBRC))

Johnson’s attorneys said the documents don’t lie or fade, like memories.

“We are asking the court to right a terrible wrong,” said Ty Alper, one of Johnson’s attorneys. “Grant him a new trial.”

Hayden acknowledged that the allegations of prosecutorial misconduct are serious for everyone involved, but he maintained the claims did not meet the burden of proof that a Brady violation occurred.

In a phone call to Judge Pulliam’s court on Friday, a judicial assistant said Pulliam will examine the evidence presented and issue a finding of facts, which she’ll then submit back to Alabama’s court of criminal appeals. The issue of the Brady violation was remanded back to circuit court in April, 2018.

Two previous remands from the court of criminal appeals over Johnson’s claims of ineffective council have led to evidentiary hearings in Jefferson County court and the court denied the request for a new trial in both cases.

Johnson’s attorneys have submitted a separate motion asking that his death sentence be vacated based on doubts about his guilt expressed by former prosecutor Jeff Wallace. Judge Pulliam’s judicial assistant said Pulliam was referring to that motion when she stated in court that she did not have jurisdiction to grant a new trial.

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