MONTGOMERY, Ala. (AP) — A number of former judges and prosecutors — including two previous Alabama chief justices and a state attorney general — have joined those seeking a new trial for a death row inmate amid questions about his conviction more than 20 years ago.
Former Alabama Attorney General Bill Baxley, former chief justices Sonny Hornsby and Drayton Nabers and several former judges and prosecutors have submitted briefs supporting a new trial for Toforest Johnson who was convicted of the 1995 murder of a deputy sheriff.
“The petition before the Court is an extraordinary and rare situation in which the evidence of constitutional violations and Mr. Johnson’s innocence is genuinely overwhelming,” wrote attorneys representing Nabers, former Alabama Supreme Court Justice Ralph Cook and others.
Johnson, 48, was convicted and sentenced to death for the murder of Jefferson County Deputy Sheriff William Hardy. Hardy was shot twice in the head while working off-duty security at a hotel in 1995. Johnson has maintained his innocence and said he was at a nightclub at the time of the shooting.
The key prosecution witness at the trial testified that, while eavesdropping on a phone call, she heard a man she believed was Johnson admitting to the crime. She was paid $5,000 for her testimony but the defense was not informed of the payment.
The former court officials are supporting Jefferson County District Attorney Danny Carr’s urging for a new trial. Carr wrote last year that he took no position on Johnson’s innocence or guilt but said there are concerns about his trial. He wrote those include that a key witness was paid a reward, a fact not mentioned at trial, and alibi witnesses place Johnson in another part of town at the time of the shooting.
Carr, who was elected in 2018, was not the district attorney during Johnson’s trial.
Baxley signed on to a separate brief arguing the court should grant the request for a new trial, and he wrote an opinion piece that appeared in The Washington Post on Wednesday urging action.
“I have never known anyone in Alabama’s courts or law enforcement who would knowingly go along with executing an innocent man. But unless Johnson is granted a new trial, we risk doing so. This would be an offense against all Alabamians — even those who, like me, believe in the death penalty,” wrote Baxley, who served as the state’s top prosecutor for much of the 1970s.
The Innocence Project also filed a brief urging a new trial. “If ever a case bore the hallmarks of a wrongful conviction, Toforest Johnson’s is it,” lawyers with the nonprofit legal organization wrote. It said: “Inconsistent prosecutorial theories, a prosecution that depends on a single ‘earwitness’ identification—and a compensated earwitness at that—and later-expressed prosecutorial doubt about the strength of the case. Toforest Johnson’s case checks all of these boxes.”
The briefs were filed with Jefferson County Circuit Judge Teresa T. Pulliam who last March denied Johnson’s request for a new trial on the grounds of withheld evidence. Pulliam found that Johnson’s attorneys had not established that the witness, Violet Ellison, was motivated by the financial reward or that prosecutors knew about it.
The Alabama attorney general’s office wrote in a January court filing that Pulliam’s March decision is before the Court of Criminal Appeals so arguments on the latest new trial request must wait until that is settled.