Jefferson County Judge Denies New Trial in Possible Wrongful Death Row Conviction

Toforest Johnson (SOURCE: Shanaye Poole)
Toforest Johnson (SOURCE: Shanaye Poole)((SOURCE: Shanaye Poole))
Published: Mar. 17, 2020 at 8:13 PM CDT
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BIRMINGHAM, Ala. (WBRC) - Jefferson County Circuit Judge Teresa Pulliam denied a new trial Monday for Alabama death row inmate Toforest Johnson, whose case has attracted local and national attention from prominent lawyers and advocates who believe he is innocent.

Johnson was convicted and sentenced to death for the 1995 murder of Jefferson County Sheriff’s Deputy Sheriff William G. Hardy and has long maintained that he was nowhere near the scene of the crime at the time the deputy was killed. Numerous alibi witnesses confirm Johnson’s account, and the State has presented in different court proceedings as many as five different accounts of who committed the murder.

Toforest Johnson with mother, daughter Shanaye Poole and son Tremaine Perry. (SOURCE: Shanaye...
Toforest Johnson with mother, daughter Shanaye Poole and son Tremaine Perry. (SOURCE: Shanaye Poole)((SOURCE: Shanaye Poole))

Writing that she found the State’s star witness “well-dressed” and “articulate,” Pulliam stated in her decision that Johnson failed to prove his claim of prosecutorial misconduct.

At trial, the State’s only evidence implicating Johnson in the crime was testimony from Violet Ellison, a woman who claimed she overheard someone who identified himself as “Toforest” confess to the murder on a three-way jail telephone call. Ellison had never met Johnson or heard his voice.

The State’s 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."

At a June 2019 hearing in Jefferson County Circuit Court, attorneys for Johnson presented evidence, including a copy of the actual check, that the State paid Ellison $5000 for her testimony, a fact the State had failed to disclose to Johnson’s trial attorneys. Johnson’s attorneys also introduced a letter written by then-District Attorney David Barber, that stated Ellison had come forward with her story in pursuit of the reward money.

Ellison testified at the hearing as well, claiming that she did not know anything about the highly-publicized reward at the time of trial. Instead, she insisted, officials from the District Attorney’s office contacted her years later to offer her money for her testimony.

Johnson’s attorneys told Pulliam that Ellison’s story made no sense.

“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," Johnson attorney Ty Alper argued at the hearing.

The attorneys also pointed out numerous inconsistencies in Ellison’s trial testimony, as well as the fact that her account was at odds with the physical evidence in the case. For example, in Ellison’s account, two different people shot Deputy Hardy. But the forensic evidence pointed to only one shooter.

Pulliam however, wrote that she found Ellison to be “well dressed, well-spoken and answered the questions both on direct and cross with confidence.” Ellison’s testimony, Pulliam found, outweighed the evidence Johnson’s attorneys presented.

Johnson’s case has attracted attention, in part because of what Pulliam described as “conflicting theories of the prosecution of this case.” But Pulliam’s order, which she acknowledged was “narrow,” noted that she was not asked to “consider the weight or sufficiency of the evidence” against Johnson.

That job may fall to current Jefferson County District Attorney Danny Carr, who pledged when he ran for office to “examine post-conviction cases to identify and correct wrongful prosecutions,” including “previously-imposed death sentences” in the county.

Reached Tuesday, Carr said he had no comment on the decision but was reviewing the case.

Johnson’s attorneys said they were disappointed with Pulliam’s ruling and planned to appeal it, but were also hopeful that a broader review of the case would lead to a new trial.

Johnson’s daughter, Shanaye Poole, said she disagreed with Pulliam’s decision, but would not let it slow down her family’s efforts to free her father from a wrongful conviction.

“At the end of the day, my dad is still innocent,” Poole said. “Our family is more determined than ever to make sure the truth prevails and he comes home.”

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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