MONTGOMERY, Ala. -- 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.
Baxley said he read about the case at the urging of his son — even though he said is usually skeptical of such innocence claims — and was astonished at what he found.
“My conclusion, beyond all shadow of doubt, is that this evidence should not have gone to a jury. It’s not sufficient to uphold conviction. My further conclusion is that the guy is not guilty. The guy is innocent,” Baxley said in a telephone interview with The Associated Press.
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 that those include a key witness being 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.
Attorneys representing Nabers, former Alabama Supreme Court Justice Ralph Cook and others wrote in a separate brief that, "this is an extraordinary and rare situation in which the evidence of constitutional violations and Mr. Johnson’s innocence is genuinely overwhelming.
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 declined to comment on the briefs Wednesday.
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.
Baxley, who was Alabama’s attorney general in much of the 1970s, helped lead the effort to bring capital punishment back to the state and said he remains a strong proponent of the death penalty.
“I believe in the death penalty. I can’t say that enough. But I have never known a person in the court system, or a law enforcement officer that would advocate or let an innocent person go to the electric chair or (be lethally injected)” Baxley said.