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EXCLUSIVE: DA investigation inspires new appeal in Toforest Johnson’s innocence claim from Alabama’s death row

Donna and Toforest Johnson at Holman Prison visitation.
Donna and Toforest Johnson at Holman Prison visitation.(Donna Johnson)
Published: Dec. 9, 2020 at 2:01 PM CST
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BIRMINGHAM, Ala. (WBRC) - Lawyers for Toforest Johnson, a man on Alabama’s death row, filed a new appeal in Jefferson County Circuit Court Wednesday, arguing that the court must give “great weight” to Jefferson County District Attorney Danny Carr’s request for a new trial.

The long saga of Johnson’s case, which has attracted national media attention, took an extraordinary turn in June, when Carr concluded a nine-month, independent review of the case. Carr, writing in a legal pleading that his “duty to seek justice requires intervention in this case,” requested that Judge Teresa Pulliam set aside Johnson’s conviction and death sentence and grant him a new trial.

In 1998, Johnson was convicted and sentenced to death in Birmingham for the murder of Deputy Sheriff William G. Hardy, a crime he has always maintained he did not commit. Prosecutors could not settle on a theory of who committed the murder, arguing five different theories of the murder at five different court proceedings. At Johnson’s trial, the state’s only evidence implicating him 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 phone call from jail. Ellison had never met Johnson, and had never heard his voice.

According to the new appeal, Carr’s re-evaluation of the case involved reviewing trial transcripts and prosecutorial files, interviewing at least one alibi witness who did not testify at Johnson’s trial, and discussing the case with attorneys and many others who were involved at the time. Carr’s request for a new trial was joined by Jeff Wallace, the lead prosecutor who obtained Johnson’s conviction and death sentence in 1998.

District Attorney Danny Carr.
District Attorney Danny Carr.(Source: Beth Shelburne)

Judge Pulliam refused to consider Carr’s legal pleading in June, noting that she had already ruled on the legal issue then in front of her, which was a claim of prosecutorial misconduct.

But Johnson’s attorneys have now placed Carr’s position squarely in Judge Pulliam’s court. “The District Attorney fulfilled his duty to seek justice by thoroughly evaluating Mr. Johnson’s case and calling for a new trial after determining that his office could no longer stand by the conviction. This is exactly what a prosecutor is supposed to do,” Johnson’s attorneys wrote in the new legal filing. The filing argues the court “must recognize that Mr. Johnson’s conviction cannot stand.”

Carr declined to provide additional comment, but said that his request for a new trial spoke for itself.

Johnson’s attorneys also declined to comment because the new filing is pending in Judge Pulliam’s court.

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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