The Jefferson County District Attorney is asking a judge to order a new trial for Alabama Death Row inmate Toforest Johnson, calling his conviction and death sentence “fundamentally unreliable.”
Toforest Johnson was convicted of capital murder in 1998 for the 1995 death of Jefferson County Deputy William G. Hardy, who was shot to death while working a part-time security job for a Birmingham hotel. Johnson has been on death row since 1998 for the killing, which he has denied.
The case has been in legal limbo for years as appeals played out in different courts. In 2020, Jefferson County District Attorney Danny Carr-- who wasn’t in office when Johnson was convicted-- voiced his concerns about Johnson’s case and asked for a new trial, while the original prosecutor supported Carr’s motion. That motion for a new trial was pending in Jefferson County while the Supreme Court looked at a previous appeal, but the nation’s highest court declined to review the case last year.
Carr filed the amicus brief—or friend of the court motion to support Johnson — in a Jefferson County court on Monday.
“A prosecutor’s duty is not merely to secure convictions, but to seek justice,” Carr wrote. He detailed the 2020 investigation that prompted his office to conclude “that Johnson’s conviction was fundamentally unreliable and that the duty to seek justice required intervention in this case.”
In 2021, the office established a Conviction Review Unit with a formal process for reviewing past convictions. In Monday’s filing, he included a summary of what its investigation found in Johnson’s case “with detailed support for its conclusion that the conviction and death sentence of Toforest Johnson cannot stand,” Carr wrote.
Hardy, a 23-year veteran cop, was killed on July 19, 1995 in the parking lot of the Crown Sterling Suites hotel. Johnson said that when the shooting happened, he was at a nightclub on the other side of town.
The conviction was based largely on claims from a woman named Violet Ellison. She told police that, while listening in on phone calls made by her daughter to the Jefferson County Jail, she overheard a man who identified himself as “Toforest” confess to the shooting. She didn’t know Johnson.
Carr wrote, “Nobody contests that Ellison is the key to Johnson’s conviction and the reason he is on death row today.” He also said the original prosecutor has acknowledged that the case depended on her testimony.
Carr detailed several issues with the case, including Ellison’s testimony and the different theories of the crime presented at various trials. Carr also recalled how in 2008, several people submitted affidavits that they had seen Johnson across town on the night of the murder, and how in 2022 “it was revealed that Ellison served as a key witness for the State in several other criminal cases.”
In Monday’s motion, Carr said physical evidence contradicts Ellison’s testimony.
“We also know that Ellison was not believed by law enforcement initially and that a different theory of the case that contradicted her account was pursued after Johnson’s trial and that the lead prosecutor now has such grave concerns about Ellison’s account that he supports a new trial for Johnson,” he wrote.
“When reviewed all together, the conviction and death sentence in this case cannot be justified or allowed to stand.”
He added that the motion for a new trial, which is pending before Jefferson County Circuit Judge Kandice Pickett, has more evidence than previous appeals. “It has not been possible, until recently, to fully appreciate the full extent to which the foundation of this conviction has disintegrated,” he wrote.
Johnson’s lawyers have long said Ellison’s testimony was troubled. After his 1998 conviction, Johnson’s lawyers said prosecutors suppressed evidence that Ellison knew about a $5,000 reward being offered in the case and testified hoping to get the money. That argument was litigated throughout the court system from 2003 until 2018.
In 2017, the U.S. Supreme Court reviewed Johnson’s case and sent the case back to state court. There was a hearing in Jefferson County, and in 2018 the copy of the check that was paid to Ellison surfaced.
Johnson’s lawyers weren’t told about the payment and didn’t conclusively know about it until seeing that check.
The county circuit court judge ruled in favor of the state, and the case again was appealed to the Alabama Court of Criminal Appeals. That court also ruled that Johnson’s team couldn’t show Ellison knew about the reward money when she talked to police.
In October, the U.S. Supreme Court declined to hear Johnson’s claims.
Read more about his case and arguments to the U.S. Supreme Court here.
Former Alabama Chief Justice Drayton Nabers and former Alabama Attorney General Bill Baxley were among numerous lawyers, former judges and prosecutors who have voiced support a new trial for Johnson. Other supporters include former U.S. Attorney Joyce White Vance, former magistrate Judge John Carroll, and three former jurors on the case.
Kim Kardashian has also voiced her support for Johnson.
Several former jurors on the case have spoken out, including Monique Hicks who wrote an op-ed calling Johnson innocent.