A jury convicted Toforest Johnson in 1998 of the murder of off-duty Jefferson County Sheriff’s Deputy William Hardy in 1995. Major questions have been raised about the credibility of a witness at the center of his case. (Alabama Department of Corrections)
Attorneys for Alabama death row inmate Toforest Johnson filed a petition in Jefferson County Circuit Court Thursday seeking a new hearing on his death sentence, citing concerns raised by the local district attorney.
A jury convicted Johnson in 1998 of the 1995 murder of off-duty Jefferson County Deputy William Hardy while he was moonlighting as a security guard at a hotel.
Johnson has always maintained his innocence. No physical evidence links him to the crime, and the testimony of two witnesses critical to his conviction has been called into question. Jeff Wallace, who led the prosecution of Johnson, has called for a new trial.
“This feels different,” said Shanaye Poole, Johnson’s daughter. “I think it is just the outpouring of support that we have received, not only from the community, but also from the district attorney. We are just extremely grateful that the DA has conducted a full review of the case.”
Johnson’s attorneys have filed a request for a new investigation into Johnson’s conviction, called a successive Rule 32 petition, to address the results of an investigation completed by Jefferson County District Attorney Danny Carr in June 2020 that cast grave doubts about the investigation and prosecution.
“The evidence in this case has unraveled over 20 years,” Carr wrote in an amicus brief filed with the lawsuit. “It has not been possible, until recently, to fully appreciate the full extent to which the foundation of this conviction has disintegrated. The jury and judges who previously assessed this case did not have the benefit of all of the information that we have access to now.”
Johnson’s attorneys cite findings in the report that challenged the credibility of a critical witness, Violet Ellison, who allegedly overheard Johnson admit to shooting and killing Hardy while speaking with someone during a three-way phone conversation.
The defense team later learned that Ellison had sought and was later paid a $5,000 reward by the state for information related to Hardy’s death. His legal team said prosecutors withheld the information, which they said could have been used to challenge her credibility, an act known as a Brady violation. Carr’s brief also said she was working with prosecutors on other cases.
“In 2022, it was revealed that Ellison served as a key witness for the State in several other criminal cases, including one Jefferson County case, pending at the same time as the Johnson case, that resulted in an acquittal and another that was dismissed prior to trial,” Carr’s brief states.
The case
Hardy, a law enforcement officer with 23 years of experience, was shot and killed on July 19, 1995 at the Crown Sterling Suites Hotel in Birmingham while investigating a noise in the hotel parking lot. Law enforcement arrested Johnson; another man named Ardargus Ford and four other individuals in connection with the case. Three of those arrested were eventually released and the charges dropped.
Three weeks after the shooting, Ellison reported to investigators that her 16-year-old daughter at the time sometimes made three-way calls for people incarcerated at the Jefferson County jail so they could speak with multiple people without having to pay for additional calls.
During one of those three-way phone conversations in August 1995, Ellison said, her daughter put down the phone and left the room and Ellison then picked up the phone and claimed to overhear the conversation in which a person who called himself “Toforest” admitted that he and another individual shot Hardy.
Both Ford and Johnson were tried twice in separate cases with the state. Prosecutors used different theories of the case over the trials, first claiming Ford shot Hardy; then claiming Johnson and not Ford shot Hardy; then claiming Johnson and another man shot Hardy.
“In 2008, multiple alibi witnesses submitted sworn, uncontested affidavits that they saw Johnson across town from the crime scene the night of Deputy Hardy’s murder,” Carr said in the brief.
Ford was acquitted at his second trial in 1999. Johnson was found guilty of capital murder and sentenced to death. At a sentencing hearing in 1998, a jury voted 10-2 to impose a death sentence.
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The Alabama Court of Criminal Appeals upheld the conviction in 2001. Having been denied relief in direct appeal, he then began the post-conviction appeals process known as a Rule 32 petition.
Having completed his direct appeals, Johnson then began what turned out to be a complicated post-conviction appeals process that featured multiple remands by both the state appellate court and the U.S. Supreme Court.
Johnson claimed that both his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment due process rights had been violated, accusing the district attorney of withholding the evidence of Ellison’s award.
The Alabama Court of Criminal Appeals remanded the case back to the circuit court on three separate occasions. Twice the appellate court ordered the circuit court to have a hearing for different elements of Johnson’s ineffective assistance of counsel claims.
In 2017, the U.S. Supreme Court ordered the case be remanded to the Alabama Court of Criminal Appeals and eventually to Jefferson County circuit court.
In all cases, the circuit court refused to grant him another trial. The Alabama Attorney General’s Office has argued that Johnson’s issues have been raised and dispensed with in the past.
“Indeed, these factors are successive grounds because they were previously raised in Johnson’s first Rule 32 proceeding,” wrote Jon Hayden, assistant attorney general, in a response in 2022 Johnson’s petition.
His state appeals should have ended when the justices of the U.S. Supreme Court denied reviewing his appeal for the Brady violation a second time in 2023.
Johnson’s attorneys are seeking to start a second post-conviction appeal, saying the court “never considered the evidence in its entirety.”
The filing on Johnson’s behalf argues that the case is riddled by contradictory physical evidence and undermined by alibi witness testimony and Ellison’s award.
The court had not ruled on Johnson’s petition as of Friday morning.
“It has been a very long journey for all of us,” Poole said. “Although it feels like we are close to a breakthrough, we still have to have a call to action. We are still, currently, at the mercy of the courts, and so at this point, we want a fair chance. We want fresh eyes on my father’s case and the opportunity to right a wrong.”
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