Support grows for Alabama death row claim of innocence

Toforest Johnson’s possible wrongful conviction garners national attention
Toforest Johnson (SOURCE: Shanaye Poole)
Toforest Johnson (SOURCE: Shanaye Poole)((SOURCE: Shanaye Poole))
Published: Dec. 12, 2019 at 5:12 PM CST
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BIRMINGHAM, Ala. (WBRC) - The Innocence Project filed a brief Thursday supporting the wrongful conviction claim of Toforest Johnson, a Birmingham native sentenced to death for the 1995 murder of Jefferson County Sheriff’s Deputy William G. Hardy. Johnson has always maintained he is innocent. He appeared in Jefferson County court in June for a hearing on his latest request for a new trial, based on his claim of prosecutorial misconduct.

“This is a one-witness death penalty case, riddled with problems, and has many of the hallmarks seen in wrongful conviction cases,” said Adnan Sultan, an attorney with the Innocence Project.

Johnson has been on Alabama’s death row for 21 years. His conviction relied on the testimony of a single witness who claimed she overheard part of a phone call, during which a man who she said identified himself as “Toforest” confessed to the crime.

That witness, Violet Ellison, admitted to WBRC in September that she did not know Mr. Johnson and had never heard him speak in person. The state of Alabama paid Ellison $5000 for her testimony, and acknowledged in writing that she gave information in the case “pursuant to the public offer of a reward,” which only came to light this year after the Alabama Attorney General’s office said the reward documents had been misfiled by the Jefferson County District Attorney’s office.

The “friend of the court” brief filed on behalf of the Innocence Project by Birmingham law firm Bradley Arant Boult Cummings LLP, urges Circuit Judge Teresa Pulliam to consider the Brady issue against the backdrop of numerous other troubling aspects of Johnson’s conviction. Those include the single “earwitness” testimony of Ellison, an identification method even less reliable than eyewitness testimony, according to the Innocence Project. The brief states that nearly half of all death row exonerations have involved this type of “secondary confession.”

Johnson was convicted after his first trial ended in a hung jury. The brief argues that prosecutors had trouble from the start, and were unable to settle on a theory about who committed the murder.

“In its pursuit of a conviction for the murder of Deputy Hardy, the State represented over the course of four trials at least five different contradictory theories of who shot Deputy Hardy,” the brief states. “This prosecutorial tactic virtually ensures that the State is knowingly prosecuting at least one innocent person.”

The brief also notes that the trial prosecutor in the case, former Jefferson County Assistant District Attorney Jeff Wallace testified in 2014 that he did “not think the case was very strong.”

Jefferson County District Attorney Danny Carr has not commented on Johnson’s case.

Johnson’s case has attracted national coverage recently by The Washington Post and The Appeal.

Lindsey Boney, partner with Bradley’s Birmingham office, called Deputy Hardy’s murder a tragedy.

“But that tragedy has been extended and compounded by the apparent wrongful conviction of an innocent man, who now sits on death row, based on shockingly thin evidence that recently has been undercut even further,” Boney said. “Due process demands that, at the least, Mr. Johnson be given the opportunity to present this new evidence to a jury before he is executed.”

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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