A jury convicted Toforest Johnson in 1998 of the murder of off-duty Jefferson County Sheriff’s Deputy William Hardy in 1995. Several groups filed briefs Wednesday supporting a request from Jefferson County District Attorney Danny Carr’s call for a new trial for Johnson over concerns about the credibility of a witness. (Alabama Department of Corrections)
Former prosecutors and criminal justice reform advocates have filed a new round of briefs urging a court to give Alabama death row inmate Toforest Johnson a new trial.
The series of briefs, filed Wednesday and signed by several people including former U.S. Sen. Doug Jones and former Alabama Lt. Gov. Bill Baxley, urges Jefferson County Circuit Court Judge Kandice Pickett to grant Jefferson County District Attorney Danny Carr request for a new trial for Johnson, convicted in 1998 for the murder of off-duty Jefferson County Sheriff’s Deputy William Hardy in 1995.
“When a prosecutor takes the extraordinary step of re-examining a previous conviction to assess its validity, if the prosecutor concludes the conviction cannot stand, the conclusion should be given substantial deference,” the brief states.
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Hardy was shot and killed on July 19, 1995 in the parking lot of a Birmingham hotel, where he was working as a private security guard. Johnson and four other individuals were arrested several hours later.
No physical evidence on the scene linked back to Johnson, and several witnesses stated they saw Johnson at a location across town at the time of Hardy’s murder. A jury deadlocked on Johnson’s conviction at a first trial.
At his second trial in 1998, the state put a witness named Violet Ellison on the stand to testify that she overheard him admit to shooting and killing Hardy while she was eavesdropping on a three-way phone conversation with people incarcerated in prison.
Johnson’s attorneys learned after the trial that Ellison offered to testify after learning of a reward, and was later paid $5,000 by the state, a fact that could have been used to challenge Ellison’s credibility at trial.
Carr in 2020 called for a new trial, saying he had doubts about the witnesses’ testimony, as did the original prosecutor of the case. Baxley and former Alabama Chief Justice Drayton Nabers have also called for a new trial. Johnson remains on death row.
Johnson’s attorneys filed an appeal on his behalf in November asking that the Jefferson County Circuit Court grant him another trial after Carr investigated and expressed concerns about Johnson’s situation.
But Johnson’s appeals process has been anything but straightforward. State appeals courts and the U.S. Supreme Court have remanded the case to the lower courts multiple times. The circuit court has consistently ruled against Johnson.
Carr’s findings are critical for Johnson further appeals, as he is otherwise barred from making a second or subsequent post-conviction plea to the court after he filed his initial appeal more than two decades ago.
The Innocence Project, a national legal advocacy organization, and Alabama Appleseed, a nonprofit based in Birmingham, also filed separate briefs in support of Johnson on Wednesday.
The Innocence Project writes that the case “bears all the hallmarks of a wrongful conviction.”
“When viewed together, they expose a conviction built on a foundation that has crumbled,” the brief states.
Johnson’s attorneys are sparring with the Alabama Attorney General’s Office in a series of court filings to argue for their respective sides. Johnson’s team argues Carr’s findings amount to additional evidence that supports Johnson’s cause for a new trial.
They went on to say that Johnson has never included the current district attorney’s findings as evidence in any of his prior claims.
‘“Good cause’ therefore exists to establish why he did not raise it earlier—the predicate facts supporting it did not exist until the District Attorney’s Office first publicly reported its findings in June 2020,” the court filing states.
The Alabama Attorney General’s Office argues Johnson’s most recent request is a subsequent appeal, and that he is procedurally barred from making such a request.
“Johnson previously litigated the same or similar grounds as those presented in the amended successive petition,” the Attorney General’s Office said in its filing.
The AG’s Office did not directly challenge any of the issues that Johnson made in his appeal, but instead went through a litany of reasons that Johnson has not met his burden.
“Johnson’s prior post-conviction petition challenged Ellison’s credibility based on her receipt of a reward, which is one of the ‘concerns’ noted by Carr,” the filing states. “But the (Alabama Court of Criminal Appeals) noted that ‘Johnson did not prove that Ellison was ever motivated by a reward’ and that ‘no such evidence existed.’”
As for the physical evidence, “The circuit court rejected this claim during Johnson’s first postconviction proceeding, and the ACCA (Alabama Court of Criminal Appeals) affirmed,” the filing states. “Johnson failed to show that circuit court erred in its conclusion that Ellison was a credible witness.”
Gov. Kay Ivey late last month commuted the death sentence of Robin “Rocky” Myers to life without the possibility of parole after he was sentenced to die after a capital murder conviction.
Ivey had concerns about the lack of evidence in the case and decided to halt his pending execution.
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