JEFFERSON COUNTY, Ala. (WBRC) - Toforest Johnson is used to waiting. He’s been on Alabama’s death row for 21 years, waiting for a court to recognize his insistence that he is innocent of the crime that landed him there.
He waits for visits from his family members who live 200 miles away near Birmingham. He waits for his meals and for precious time to exercise outside his 5x8 feet cell.
Now he is waiting on Jefferson County Circuit Judge Teresa Pulliam to decide whether he deserves a new trial, based on the prosecution’s failure to disclose a reward payment to the star witness against him. The state paid Violet Ellison $5000 in 2001, but only admitted this to Johnson’s defense team earlier this year.
In January 2019, the Alabama Attorney General’s office finally produced documents related to the reward and said they weren’t turned over previously because the DA’s office had “misfiled” them. These documents establish that in 2001, former District Attorney David Barber admitted in writing that Ms. Ellison had come forward with her story “pursuant to the public offer of a reward.”
In 1995, Jefferson County Sheriff's Deputy William Hardy was shot in a hotel parking lot while moonlighting as a security guard. Outrage over the senseless killing was fierce. Less than two weeks after he was killed, then-Governor Fob James announced a $10,000 reward for information leading to the arrest and conviction of the perpetrator. The media coverage was relentless.
A BRADY VIOLATION?
A Brady violation is a serious breach of duty by the state that involves the failure to turn over favorable evidence to the defense. WBRC first reported on Johnson's possible innocence in June, a few days before an evidentiary hearing over his claim that the Jefferson County District Attorney's office committed a Brady violation by not disclosing Ellison's financial motivation for coming forward. In 2017, the U.S. Supreme Court decided that Johnson deserved a hearing on this alleged violation.
Johnson’s attorneys declined to comment on the issue because it is pending before the court. But their assertion at the June hearing was that then-District Attorney David Barber wrote in emails and letters more than 17 years ago that Ellison had financial motivation to come forward with her story, and that her testimony at the hearing on behalf of the state was simply not credible.
The state, represented by Alabama's Attorney General, maintains that no Brady violation occurred because Ellison said she didn't know about the reward when she testified at trial. Ellison insists that despite widespread media coverage and personally knowing the victim, she only learned of the reward three years after Johnson was sent to death row. But as with many post-conviction claims, the devil is in the details.
On the stand and in a recent interview with WBRC, Ellison's version of how she came to receive the reward was different than the account presented by the state in court and later echoed in an emailed statement from the Office of the Attorney General. In this new statement, the Attorney General is at odds with the account of its own star witness. How this will factor into Judge Teresa Pulliam's decision remains to be seen. The deadline for Judge Pulliam to issue findings to the Court of Criminal Appeals is still more than three months away, which means more waiting for Johnson on death row.
“I’m so sick of it, I don’t know what to do,” Ms. Ellison said to me from behind her front door, which she had opened a crack after I rang the doorbell. “I’m tired of it. I’m trying to get it out of my head.”
Ellison, now 77, had a major role in sending Toforest Johnson to death row, testifying that she overheard phone calls in which someone who identified himself as "Toforest" admitted to the killing. The state presented no eyewitness to the crime and no forensic evidence connecting Johnson to the murder. Nevertheless, the state insisted that Johnson killed Deputy Hardy, even though multiple alibi witnesses placed him across town at the time of the shooting. There is no dispute that Ellison is key to the case.
In fact, lead prosecutor Jeff Wallace testified in 2014 that "I don't think the State's case was very strong, because it depended on the testimony of Violet Ellison."
During a recent 20-minute conversation I had with Ellison on the front porch of her small, brick house on the west side of Birmingham, she stated no less than a dozen times that she did not know about the reward and was not motivated by the money.
I asked Ellison several times about receiving the reward, and she told me essentially what she said on the stand during Johnson's evidentiary hearing in June. More than three years after the trial, she claims someone from the prosecution called her about the reward and not the other way around. However, she could not remember who contacted her, or exactly what triggered the phone call.
"So, they just called you?" I asked.
"Yeah, I didn't know anything about a reward," she said.
"You didn't call them first?" I asked.
“No, I did not call them first,” Ellison insisted. “They just said something about the governor had requested that I get the reward. You know, it’s been so long I don’t remember what happened yesterday or twenty minutes ago,” she added.
THE STATE’S SHIFTING ARGUMENT
This story from Ellison differs from the account presented by Assistant Attorney General Jon Hayden at the June hearing. In his opening statement, Hayden told the court that Violet Ellison would testify that she had a conversation with someone who mentioned the reward, which prompted her to inquire about it with the District Attorney’s office.
Hayden said: “The State anticipates that Ms. Ellison when she testifies will inform the Court when she contacted law enforcement, the sheriff’s department, on August 9th, 1995, she didn’t know anything about a reward, had not heard about a reward. When she testified in August of 1998, she didn’t know about a reward, had not heard of a reward. A few years later, she had a conversation with someone who mentioned the reward. And I’m not going to get into that conversation. I don’t want to get into hearsay before the Court. But after that conversation, she made an inquiry to the district attorney’s office. And she made an application. And this was in August of 2001, three full years after she testified.”
Hayden's statement contained one big difference from Ellison's eventual testimony: he said that Ellison contacted the prosecution about the reward, but Ellison said the prosecution contacted her. Hayden reiterated later at the hearing that his understanding of what Ellison was going to say was based on a conversation he had with her prior to the hearing.
In August, the communications director for the Office of the Attorney General sent the following statement, which is also at odds with Ellison's insistence that someone from the DA's office first contacted her about the reward.
"There was no Brady violation in this case. Brady v. Maryland requires the prosecutor to turn over evidence that exists at the time of trial that is favorable or exculpatory to the criminal defendant. When Violet Ellison testified at Johnson's capital murder trial, she was unaware that the Governor's Office had stated it would give $10,000 to someone who had information leading to the arrest and conviction of Johnson. Three years after the trial, presumably when she learned that a reward had been offered, Ellison requested the cash reward that had been offered by the Governor. The District Attorney's Office agreed that she had given information leading to Johnson's conviction and the court awarded her $5000. Thus, at the time of Johnson's trial, the prosecutor was unaware that Ellison would request the cash award several years after the trial and there was no suppression of evidence that might have been favorable to Johnson. The information concerning the cash award was recently turned over after it was discovered in the District Attorney's Office in an unrelated file. It had apparently been misfiled at some point and was not included in Johnson's file retained by the Jefferson County District Attorney."
"The State does not just call you out of the blue, years after trial for no particular reason and tell you, we'd like to give you $5000 for this trial that you testified in three years ago," argued Johnson attorney Ty Alper. "It makes no sense, Judge."
The question of who initiated the contact between Ellison and the prosecution is no small matter. If Ellison initiated the contact, then her testimony at the June hearing was not accurate, which could indicate that she knew about the reward earlier than she claims. On the other hand, if the prosecution initiated the contact, then the statements from Hayden and the Attorney General’s office are wrong. It’s difficult to imagine the prosecution first contacting Ellison about the reward in 2001, if they had never discussed the reward before then.
In July, I submitted a request to the Jefferson County District Attorney's office for the current policy that guides employees in authorizing and paying rewards to witnesses, as well as any version of such policy that existed between 1995 and 2001. The response I received confirmed that Ellison's version of events was not consistent with normal practice.
A written response from Chief Deputy District Attorney Joe Roberts stated that the office has no specific policy in regard to reward payments for witnesses in criminal trials, and to his knowledge, has never had such a policy. The letter detailed the typical procedure that transpires before a reward is paid, which does not involve the District Attorney’s office initiating contact with the witness about reward payments.
Roberts told me on the phone that they have no information about an employee in the District Attorney’s Office establishing contact with Ms. Ellison, and he cannot confirm exactly what occurred in this case.
“Typically, law enforcement contacts us about the witness, we didn’t contact her or she contact us,” Roberts said. “I don’t know that for sure, but I think that’s the normal process.”
The “misfiled” documents seem to support Johnson’s attorneys’ claim that Ellison, motivated to secure the reward money, sought the reward from state officials, who then had to determine whether or not she was eligible. The earliest record are emails sent by former District Attorney David Barber on August 2, 2001. The first, directed to a legal assistant in the governor’s office, discussed Ellison’s eligibility for the reward.
Barber wrote: "One of my DDA’s called you about the reward in the Deputy William Hardy case, where Deputy Hardy was killed working an extra job at the Embassy Suites here. Violet Ellison was a key (maybe THE key) witness in defendant Toforest Johnson’s trial. However, we did not know about her until AFTER Johnson was arrested, so her information didn’t really lead to the “arrest” but was substantial in getting the “conviction.”
The second email from Barber asked an associate to prepare a letter to the governor requesting $5000 of the reward to be paid to Violet Ellison.
The following day, the legal assistant in the governor’s office sent an email response to Barber, directing him to ask the trial judge to issue an order authorizing the reward.
“We agreed, half the money sounded appropriate,” she wrote.
The rest of the documents provide a timeline of what transpired before Ellison received her check.
An application for the reward dated August 6, 2001 was signed by Violet Ellison. An order from Judge Alfred Bahakel, who presided over Johnson’s murder trial, was signed and dated on August 8, 2001. David Barber sent a letter to Governor Don Siegelman, dated August 7, asking him to grant half of the reward to Ellison. A legal advisor to the Governor then sent a letter to the state finance director asking for payment. Somehow, none of these documents were submitted into the official court record and nobody bothered to inform Johnson’s lawyers that any of this was happening.
This isn’t an isolated incident in Jefferson County. Montez Spradley was sentenced to death in 2008 for robbing and killing a woman, but the evidence against him was scant and his conviction quickly began to fall apart. Spradley’s attorneys learned the key witness against him had also been paid $5000 for her testimony, but it wasn’t disclosed to his defense team. Just like in Johnson’s case, the trial judge signed off on the payment, but never entered it into the official record. The Judge in Spradley’s case was Alfred Bahakel’s sister, Gloria Bahakel. The District Attorney at the time was David Barber. Spradley was released from prison in 2015.
On August 18, 2001, the state of Alabama issued a check to Violet Ellison for $5000.
“I signed for it and I went on to the bank,” Ellison told me. “And I didn’t question them. I can’t be liable if the state lost the paperwork. I’m not responsible for that.”
REWARDS IN BRADY VIOLATIONS
The issue of rewards comes up frequently in Brady violations, according to a former federal prosecutor who has studied the issue. Laurie Levenson said it seems highly implausible that a state would pay a reward to a witness who did not seek it.
“That doesn’t ring true to me. It’s not even logical,” said Levenson, current professor of law at Loyola Law School in Los Angeles. She also reiterated that the law around this issue is clear. Prosecutors have an ongoing responsibility to disclose any information about a reward.
“The jury wants to know why the person is testifying,” Levenson said. “This goes very much to their motive and how credible their testimony might be.”
In addition to Ellison’s credibility surrounding the reward, Johnson’s attorneys’ question whether the state’s star witness can be believed at all. Ellison had never met Toforest Johnson or heard him speak before she went to police and claimed she heard him confess over the phone, a circumstantial piece of evidence that Johnson’s supporters say railroaded him to death row.
“Are you sure it was him on the phone and not somebody else?” I asked.
“I can’t pinpoint it was him,” Ellison admitted to me. “I’m sure it was the same voice each time that I heard the conversations.”
“But have you ever heard him speak in person?” I asked.
“No, I never heard him speak anything,” she said.
A local defense attorney told me that sadly, it’s not that unusual to have someone sent to Alabama’s death row based on the testimony of one witness. The general public, he said, likes to believe these cases are airtight and include lots of forensic evidence and multiple witnesses.
“They want to convince themselves of a reality that doesn’t exist,” he said.
I asked Violet Ellison whether she had an opinion about whether Toforest Johnson deserved a new trial.
“No, that’s not my judgement,” she said. Interestingly, she also told me she’s never believed in the death penalty.
“Do you think about the fact that he’s on death row?” I asked.
“I did at first,” Ellison said. “It troubled my spirit. As time went by, you try to forget the bad things that happened. Since all this has arose again, I think about it and I wish things had gone different for him.”
Toforest Johnson is likely also hoping this time will be different. His family reports that as he waits on death row to hear his fate, he prays the Court will give him an opportunity to prove his innocence before jurors who know the truth about the reward payment.
The people who love Toforest Johnson hope that happens before it’s too late.
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.