It has now been nearly three years since I first wrote about Toforest Johnson, a 49-year-old man who has sat on Alabama’s death row for 24 years, despite strong evidence that he is innocent. That report persuaded former Alabama attorney general Bill Baxley to take a deeper look at the case. He later signed an amicus brief and wrote his own op-ed here at The Post, both calling for Johnson’s conviction to be overturned.
At least 14 former judges and prosecutors have also called for Johnson’s conviction to be overturned, including two former state supreme court justices, a former president of the Alabama state bar, the current district attorney from the county where Johnson was convicted and, remarkably, even the man who prosecuted Johnson. Three of the jurors who convicted Johnson have also now said they believe they were wrong. Yet, as of now, Johnson is still on Alabama’s death row.
Johnson was convicted in 1998 for the 1995 murder of Jefferson County deputy William Hardy. The investigation of Hardy’s murder was a mess. Police and prosecutors meandered from suspect to suspect, pressured and threatened witnesses, and dangled reward money for incriminating testimony.
In the end, prosecutors focused on Johnson and his friend Ardragus Ford, even though both had alibis. Both men were promised leniency if they’d implicate the other. Both refused, insisting that neither had anything to do with the murder.
The two were arrested because of statements from a teenage girl who was with them on the night of the murder. But that girl continually changed her story, often after threats from police, as their theories about the crime continued to evolve. At Ford’s trial, prosecutors conceded she had lied at least 300 times. Another witness who implicated Ford said the police had threatened to take away her children. Yet another witness, who refused to implicate the men, was locked up in juvenile detention for nearly a year because the police didn’t believe her.
Johnson and Ford were tried separately, and at each trial prosecutors offered a theory of the crime that directly contradicted what they argued at the other. Only Johnson was convicted. He was sentenced to death.
The only real evidence against Johnson came from a woman who claimed to overhear a phone conversation in which she said a man identifying himself as Johnson confessed to the crime. But in 2003, Johnson’s attorneys learned that this witness had been paid $5,000 for her testimony. That was never disclosed to the defense, and prosecutors wouldn’t turn over a copy of the check for another 16 years.
In May of this year, the Alabama Court of Criminal Appeals ruled against Johnson. Under Alabama law, it isn’t enough that the key witness against Johnson was paid and that this was never disclosed. The burden is on Johnson to prove that the witness testified only because of the reward. The court ruled Johnson had failed to do so.
There were other problems with Johnson’s trial. His attorney had no death penalty experience and expressed reservations to the trial judge about taking the case. Due to a lack of funds, that attorney could afford only a down-on-his-luck, unlicensed investigator whom Johnson’s current attorneys describe as an “alcoholic, racist, suicidal” man who was homeless at the time and had recently been fired from a previous capital case for incompetence.
That investigator failed to investigate Johnson’s alibi that he was at a club on the other side of Birmingham at the time of the murder. Johnson’s attorneys have since found 10 eyewitnesses who placed him at the club.
Despite all of this, and despite the growing list of former Alabama officials speaking out on Johnson’s behalf, there’s a notable lack of urgency among the current state officials — those who have the power to do anything about it.
Alabama Gov. Kay Ivey has yet to show any interest in Johnson’s case. When a local TV station recently asked Alabama Attorney General Steve Marshall about Johnson’s case, he replied: “We’ve seen the appeal most recently be upheld by the Alabama Court of Criminal Appeals.” He added, “Much of the narrative that we see those that are advocating on behalf of this defendant were disproven in court.”
That isn’t true. The Alabama Court of Criminal Appeals didn’t rule on Johnson’s innocence. It ruled on the narrow question of whether the trial court erred in finding the state’s failure to turn over evidence of the payment to one witness was a violation of Johnson’s constitutional rights. But the public is often ignorant of the details of any complex case. That gives politicians such as Marshall cover to brush aside the very real possibility that the state is preparing to execute an innocent man.
Both federal and state appeals courts have ruled that once a case progresses as far as Johnson’s, the courts’ obligation is to protect the finality of jury verdicts. Prisoners must show overwhelming evidence of innocence to get relief. Lesser claims, they argue, are better handled by the political process — by appealing to attorneys general to drop charges, or to governors to grant clemency.
So the courts pass the buck to the politicians, while politicians like Marshall claim that if prisoners like Johnson were really innocent, the courts would have freed them.
Meanwhile, every month of delay is a month Johnson could have lived outside of prison, reclaiming the time and freedom unjustly taken from him.