Toforest Johnson. Courtesy of the family of Toforest Johnson via The Innocence Project
T
oforest Johnson has spent more than 25 years on death row in Alabama and is at risk of being executed for a crime he did not commit.
In the early morning of July 19, 1995, Jefferson County Deputy Sheriff William G. Hardy was shot twice and killed in the parking lot of a hotel in Birmingham. Five different young Black men were arrested and charged in connection with the crime, but only Mr. Johnson was convicted.
Johnson, who has consistently maintained his innocence, was sentenced to death in 1998 and has been on death row for more than a quarter-century, despite no physical evidence or eyewitness testimony connecting him to the crime scene.
The key evidence the State presented was the “earwitness” testimony of a woman named Violet Ellison, who claimed she overheard a man named Toforest confess to the crime in a snippet of an eavesdropped phone call.
Here are 5 things to know about Johnson’s case:
1. At least 10 eyewitnesses placed Johnson 4 miles away from the scene of the crime.
Johnson and his friend Ardragus Ford were at the downtown Birmingham nightclub Tee’s Place at the time Deputy Hardy was killed in a hotel parking lot across town.
Ford was in a wheelchair, and as many as 10 different witnesses remember seeing them together that night. “Toforest Johnson, I remember he was pushing Ardragus Ford in the wheelchair. They came together,” one of those witnesses, Barbetta Hunt, told journalist Beth Shelburne in her acclaimed podcast about the case, Earwitness.
2. The prosecution presented five different theories about who killed Deputy Hardy.
Police did not know who killed Hardy, and they had no physical evidence or eyewitness testimony. They could not make up their minds about how Hardy was killed or who killed him. Prosecutors ultimately ended up presenting five different, mutually exclusive, theories of the murder at five different court proceedings.
Before a grand jury, the lead detective testified that there was “no doubt” that Ford and another man, Omar Berry—not Johnson—had shot Hardy. Under oath, the lead detective recounted his understanding of the crime and how he believed it unfolded: “Ardragus Ford spins in his wheelchair, pulls up a 9 mm and fires a shot. After he fires this shot, the deputy starts to stumble down the hill, at which time he was shot again by Omar Berry.”
In the three years following this grand jury proceeding, prosecutors changed their theory of the case repeatedly and never settled on one story. Multiple young Black men were charged with capital murder, but only one was ever convicted and sentenced to death: Toforest Johnson.
3. The State’s case relied on the testimony of a witness who was secretly paid $5,000 for her testimony.
After the state of Alabama announced a $5,000 reward for information on the case, Ellison approached the police. Ellison testified that she eavesdropped on a three-way phone call and heard a man, who said his name was Toforest, confess to the crime. The two didn’t know each other and had never met, but her testimony became the centerpiece of the State’s case against Johnson.
Jeff Wallace, the lead prosecutor, testified under oath in 2014 that he didn’t “think the State’s case was very strong, because it depended on the testimony of Violet Ellison.”
In 2019, the State finally disclosed that it secretly paid Ellison $5,000 for her testimony, after denying it for 17 years. This revelation prompted three of the jurors who had voted to convict Johnson to call for a new trial, saying they would never have voted to convict if they had known Ellison had expected payment for her testimony.
In October 2023, the Earwitness podcast revealed that Ellison was the State’s star witness in at least five other criminal cases, including cases that ended in acquittals and dismissals when her testimony fell apart. Earwitness also disclosed that even Ellison’s own grandchildren, who said she would “do anything for a dollar” and is “a true scam artist,” don’t trust her.
4. Diverse voices from across Alabama—including the lead trial prosecutor—support a new trial for Johnson.
Bill Baxley, who served as Alabama’s attorney general in the 1970s and fought to bring back the death penalty to the state after the Supreme Court deemed it unconstitutional in 1972, is convinced that Johnson is an innocent man “trapped” on Alabama’s death row.
“Johnson’s murder trial was so deeply flawed, the evidence presented against him so thin, that no Alabamian should tolerate his incarceration, let alone his execution,” Baxley wrote for the Washington Post.
Jeff Wallace, the original trial prosecutor, has also called for a new trial, as has the elected Jefferson County District Attorney Danny Carr. Carr’s office conducted a nine-month review of the case and concluded that “the interests of justice” demand a new trial. Republicans and Democrats across the state—including three former Alabama Supreme Court justices and two former Alabama governors—have also joined the call for a new trial for Mr. Johnson.
5. The critically acclaimed podcast Earwitness tells Johnson’s story in full.
In her podcast Earwitness, Alabama-based investigative journalist Beth Shelburne tells the story of her two-year-long investigation into a conviction that was based on the paid testimony of a single “earwitness.” The investigation asks, “How did an innocent man end up on death row—and why is the state still trying to execute him over the objection of the prosecutor who put him there?”
In the eight-episode series, Shelburne outlines the night Hardy was killed and speaks to many of the key players in the case, including the lead detective, the lead prosecutor, and Ellison—the earwitness. One critic raved that the investigation reveals “some of the most extraordinary tape I have heard in any podcast.”
Righting wrongs
Johnson’s lawyers continue to fight for a new trial in state and federal court. While there is no date set for Johnson’s execution, his family and supporters are not idly waiting for it to be scheduled.
Greater Birmingham Ministries is spearheading the effort to raise awareness about Johnson’s case. Using the slogan “It’s not too late to fix this mistake,” the organization has engaged faith communities across Alabama in a banner tour campaign to reverse this tragic injustice and stop his execution.
Johnson’s daughter Akeriya Lawler, who goes by “Muffin,” has also created a series of Instagram and Tiktok videos to help the public understand what it is like to have a father on death row for a crime he did not commit. Others can get involved by signing this petition.
The Innocence Project has filed two amicus briefs in support of a new trial for Johnson, one in the United States Supreme Court and one in Alabama’s Jefferson County Circuit Court.
Republished courtesy of The Innocence Project