14 former judges, prosecutors urge new trial for Alabama death row inmate, citing ‘irregularities’ in conviction

MONTOMERY, Ala. – A group of 14 former judges and prosecutors – including a former Alabama lieutenant governor and a former Alabama Chief Justice – urged a judge in Alabama’s Jefferson County on Tuesday to set a new trial for a death row inmate who was convicted of murder in 1998, though he was not linked to any physical evidence at the scene.

In two of seven friend-of-the-court briefs filed with the Jefferson County Circuit Court, the signatories wrote that the court should follow the guidance of Jefferson County District Attorney Danny Carr, who said the court should grant Toforest Johnson a new trial amid questions about conduct in the first one. 

“The DA’s decision to vacate Mr. Johnson’s conviction is a heavy one made after an exhaustive investigation of the surrounding circumstances and irregularities leading to his conviction; this weighty decision should be given significant deference by the Court,” said one brief signed by former Alabama Chief Justice Drayton Nabers; former Alabama Supreme Court Justice Ralph Cook; former Alabama State Bar President Bill Clark; retired Judge William Bowen and attorney Bobby Segall.

“To disregard District Attorney Carr’s decision would frustrate the exact duties he was elected to perform and further undermine public confidence in our criminal justice system,” the brief says.

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Chief Justice Drayton Nabers, Jr. stands out in front of the Alabama Supreme Court building Tuesday afternoon, Nov. 8, 2005. (Photo: (Garrett Davis, Montgomery Advertiser))

Toforest Johnson’s conviction

A jury convicted Johnson in 1998 of the 1995 murder of William Hardy, a Jefferson County deputy sheriff.

Hardy was working as a private security guard at a Birmingham hotel when he was shot and killed in the hotel’s parking lot early in the morning of July 19, 1995. Police arrested Johnson and charged him with murder a few hours later. 

Toforest Johnson (Photo: Alabama Department of Corrections)

No physical evidence linked Johnson to the scene, and Johnson, 48, maintains his innocence. A jury could not reach a verdict in the first trial, but a jury in a second trial convicted Johnson.

After the conviction, Johnson’s attorneys learned that a witness for the prosecution named Violet Ellison received $5,000 from the state after approaching the police in response to a reward offered. 

Johnson’s attorneys filed a motion known as a Brady claim, saying prosecutors withheld evidence that could have raised questions about the witness’ credibility. State courts upheld the conviction, but the U.S. Supreme Court ordered new hearings on the Brady claim in 2017. 

Last year, Jefferson County Circuit Judge Teresa T. Pulliam denied Johnson’s Brady claim, ruling that Johnson had not established “by a preponderance of the evidence” that Ellison “either came forward or gave testimony out of a ‘hope of reward,’ or that the state had knowledge of such motivation at or before the time of the trial.” 

But in June, Carr said Johnson should get a new trial, citing issues with Ellison and other witnesses and the fact that prosecutors could not settle on a theory of the case. 

“A prosecutor’s duty is not merely to secure convictions, but to seek justice,” Carr wrote in a brief to the court.

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Defense attorney Bill Baxley gives closing arguments on Friday, June 10, 2016 in Opelika, Ala. (Photo: Todd J. Van Emst, AP)

A brief signed by several former prosecutors, including former Alabama Lt. Gov. Bill Baxley, who was Alabama Attorney General from 1971 to 1979, and former U.S. Attorney Joyce White Vance, supported Carr’s decision.

“Alabama district attorneys’ obligations to the justice system do not begin and end with a conviction,” a brief said. “Indeed, a prosecutor’s obligations extend long after the trial is completed. The District Attorney has taken active steps to ensure convictions obtained by his office meet the highest possible standards of justice and integrity.”

The judges in their brief also cited concerns about the operation of the death penalty in Alabama. They cited a report from the Equal Justice Initiative (EJI) that found that for every seven people executed in the state, one has been exonerated. 

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