Toforest Johnson's Innocence Case Highlighted in NPR
NPR - April 5 2021
By Debbie Elliott
Toforest Johnson was 25 years old when he was sentenced to death in 1998 for the killing of a sheriff's deputy outside Birmingham, Ala. His oldest daughter, Shanaye Poole, now 29, remembers being in the courtroom.
"I just wanted to talk to him. He looked so handsome. He had a suit on. And of course, I didn't really know what was going on. I may have been 4 or 5 years old at the time," she says. "I saw him walk away, and that was the last day of his freedom."
Ever since, Johnson has maintained his innocence, and his family has worked to overturn what they see as a wrongful conviction. Now they have help in their fight. A new district attorney in Jefferson County, Ala., looked back and determined Johnson deserves a new trial.
And other prominent legal voices — including former prosecutors — are getting behind the push to reexamine the case, which is one of dozens getting a new look as district attorneys around the U.S. review the integrity of past prosecutions.
"The records that the courts have say there is no way you can take a man's life based on what you have," says Antonio Green, Johnson's cousin who lived with him when he was arrested in the murder of Jefferson County Sheriff's Deputy William Hardy. The deputy was shot to death while working an off-duty security detail at a hotel in 1995. Both Johnson and the victim were Black.
It was a high-profile case, with few clues and no eyewitnesses. The state put up a $5,000 reward for information leading to an arrest and conviction.
Johnson became one of the suspects based on a tip from a teenager who later admitted she was after the reward money and changed her story dozens of times.
In a series of trials, prosecutors raised conflicting theories in court as to who the shooter was. Defense witnesses gave Johnson an alibi. After a hung jury, Johnson was prosecuted a second time and convicted based on the testimony of one person — not an eyewitness but an ear witness — a woman who said she overheard a jailhouse phone conversation in which someone named Toforest said he shot a deputy.
Green, who says he supports the death penalty, still can't understand how his cousin was convicted of capital murder.
"They had no evidence, no reason, no justifiable reason, to say this is our man," Green says.
Johnson's daughter agrees.
"There was no evidence pointing to him in the first place," Poole says. "It really opened my eyes to the fact that, unfortunately, the justice system is not equal."
Johnson's court-appointed defense attorney failed to call alibi witnesses in the second trial. Also, prosecutors never revealed that the ear witness got the $5,000 reward for her testimony, records of which had been misfiled until 2019. That's now the basis for Johnson's legal claim to have his conviction overturned. It's before a state appeals court. Johnson's attorney declined be to interviewed, given the ongoing litigation.
But a broader legal groundswell is underway after the Jefferson County district attorney filed a motion for a new trial last summer. Poole says finally the right people are listening.
"We have some very powerful and influential people that have rallied behind my family and my father," Poole says. "So we are very hopeful that we will be able to bring him home."
Among the influential voices calling for justice is former Alabama Attorney General Bill Baxley, who worked in the 1970s to have the death penalty reinstated. His son, also a lawyer, asked him to look at Johnson's case.
Baxley says at first he was skeptical; then he read the documents.
"I couldn't believe what I was reading," Baxley says. "It was just unconscionable for this to stand."
Defense attorney Bill Baxley in 2016. The former Alabama attorney general worked in the 1970s to have the death penalty reinstated and joined in a friend of the court brief to intervene in Johnson's case.
Baxley says he was stunned by the lack of evidence against Johnson and how the state had pushed five separate theories of how the murder occurred by four different shooters. And then the ear witness — Baxley says overhearing a phone confession is shaky.
"This lady that testified to that had never met Toforest Johnson. She had never heard him speak," Baxley says. "She didn't, as we used to say when I was young in Alabama, didn't know him from Adam's house cat."
Baxley and other former state and federal prosecutors have joined in a friend of the court brief to intervene in the case.
"It's terrible that he's been on death row all these years," he says. "But there's still the time to correct the injustice."
And it's not only prosecutors weighing in. Former judges filed a brief calling the case a "reprehensible miscarriage of justice that may otherwise lead to the execution of a likely innocent man." Signatories include two former chief justices of Alabama's Supreme Court.
There's a brief from legal scholars, another from faith-based groups and yet another from public defenders and the criminal defense bar. All are represented by some of Alabama's most prestigious law firms.
"This is extraordinarily unusual," says University of Alabama law professor Joyce White Vance. She's a former U.S. attorney for the Northern District of Alabama who signed on the prosecutors' brief.
"We are, I think, living through a moment in time where people have come to realize that our criminal justice system is not perfect," Vance says.
More and more district attorneys are looking back with a new racial justice lens and using conviction integrity units to make sure prior convictions stand up. Vance says since 2002 those units have processed more than 400 cases where people were wrongfully convicted.
"Most of the time, law enforcement gets it right. Most prosecutors are fine people who are committed to fairness and justice," Vance says. "But it's clear that there are some flaws in the system, and it's our obligation to correct those."
Jefferson County District Attorney Danny Carr had promised during his campaign to establish a conviction integrity unit. The Johnson case was among the first to get reexamined. Carr declined an interview with NPR.
Birmingham attorney Lindsey Boney represents the Innocence Project in a friend of the court brief and says Carr's motion for a new trial is groundbreaking.
"That was a very significant bombshell filing," Boney says. "The courts that now have jurisdiction over this case ought to take notice that there's something here."
He says that in a months-long review, Carr met with witnesses, the victim's family and the lead prosecutor on the case from the 1990s. What's striking from Carr's brief is that he says the original prosecutor has concerns about the case and supports the motion for a new trial.
No one seems to have a clear explanation as to why prosecutors pursued Johnson despite the tenuous evidence, other than perhaps it was a rush to get justice for a fallen officer.
"I do think that the system wanted someone to pay for this terrible crime," says Green. "You plug in the name. And he just happened to be the name that was plugged in."
Green says Hardy's family deserves answers too.
"In order to give them true justice, this injustice has to be undone," Green says.
More broadly, the legitimacy of the judicial system is at stake, says Boney. With all the support coming from all corners of Alabama's legal community, he doesn't see why the state of Alabama continues to fight Johnson's death row appeals.
"It really is a case where the state should step back," Boney says.
But Attorney General Steve Marshall — Alabama's top law enforcement officer — is fighting Johnson's appeal, arguing the conviction should not be thrown out on the basis that prosecutors withheld the fact that reward money was paid to the sole witness in the case. Marshall declined to be interviewed for this story. A spokesman says the attorney general's office has not yet taken a position on all the briefs seeking a new trial, because those legal filings are on hold until the reward money disclosure issue is resolved.
Poole keeps old photographs that show her playing with her father when she was a toddler. In one, her dad has squeezed his grown body into a child's backyard play set.
"Look at this when you can just see the joy on his face," Poole says. "I love that picture of him."
Johnson is now 48 years old and has been on Alabama's death row for nearly half his life. His five children are grown and have children of their own. Poole says they maintained their bond through family prison visits and lots of phone calls and letters.
"He just never missed a birthday," she says. "I have a stack of cards from him."
Poole says even after all these years, her dad has not given up on the justice system and tries to keep a positive mindset.
"He says, 'Princess, I wake up and I see 14 bars every day. But that just reminds me that I made it to the next day,' " she says of their conversations.
She's optimistic they're at last getting the traction they need to clear his name.
"My hope is that Toforest Johnson will be the reason why the next man won't have to go through two decades behind bars for something that he or she didn't do," Poole says.
Her father's case is not an anomaly, she says, but a symptom of a system that needs repair.