PUBLISHER'S NOTE: This disturbing, haunting case is in the news because defence lawyers have filed a brief on their application for a new trial for this black Alabama man who has been on death row since 1988 after being convicted of murdering a security guard. A story by reporter Loren Gill in 'The Appeal" provides an excellent overview of this onslaught on justice by Alabama's criminal justice system. Dated August 22, 2019, this article bears the heading: "An Alabama man on death row says he is innocent, Will he get a new trial?" A sub-heading to the piece reads: "In 1998, prosecutors failed to tell the defense that a key witness in Toforest Johnson’s capital murder trial would receive thousands of dollars in reward money for her testimony, Johnson’s attorneys say. Now a Birmingham judge must decide whether their argument has merit." While the whole story is worth the read, the following paragraphs particularly stand out in terms of the subject matter of this Blog.
"Six days later (after Deputy Sheriff William Hardy was shot, then-Governor Fob James issued a proclamation that anyone with information leading to the arrest and conviction of the killer would be rewarded $10,000. A local woman named Violet Ellison went to police soon after that and told them she had overheard a man bragging about Hardy’s murder over the telephone. She explained to investigators that her daughter, who would sometimes place three-way calls for prisoners at the Jefferson County Jail, made a call on Aug. 3, 1995, and left the room. Ellison told police she picked up the phone and heard a man who identified himself as “Toforest.” Ellison, according to court filings, said she heard the man boast, “I shot the fucker in the head and I saw his head go back and he fell” and then “Fella shot once.”Jefferson County District Attorney David Barber charged Johnson with capital murder. There was no physical evidence nor were there eyewitnesses, so Ellison was the star witness at Johnson’s 1998 trial. (She was also the star witness at his 1997 trial, which ended in a mistrial.) On the stand, she testified that she approached police six days after listening to the call because she had a guilty conscience and was having trouble sleeping. The account that Ellison said she heard over the phone contradicted testimony from hotel guests and the opinions of forensic experts, which both suggested the two fatal shots were fired in quick succession from the same gun. Yet lead prosecutor Jeffrey Wallace told the jury that Ellison was “some of the most important evidence one could find” because she didn’t have a stake in the trial’s outcome. At the conclusion of the trial, a judge sentenced Johnson to die."
Toforest Johnson has been fighting to stay alive for more two decades since his conviction in 1988. More than 20 years on Alabama's death row. One year, one day, is brutal. Almost two decades? This, as you will see, on the flimsiest of evidence - a witness whose account of a crucial phone call contains information which blatantly contradicts the state's own forensic experts and the evidence of others - and whose account is possibly tainted by a juicy reward - which cannot be tested by the tools of cross-examination because the defence is not told about it. Give me a break. Getting too angry. No room for sentimentality here. Stay tuned.
Harold Levy: Publisher; The Charles Smith Blog.
-------------------------------------------------------------
So read The Appeals entire report at the link below:
GIST: "An Alabama Man On Death Row Says He Is Innocent. Will He Get a New Trial? In 1998, prosecutors failed to tell the defense that a key witness in Toforest Johnson’s capital murder trial would receive thousands of dollars in reward money for her testimony, Johnson’s attorneys say. Now a Birmingham judge must decide whether their argument has merit. On July 19, 1995, Jefferson County Deputy Sheriff William Hardy was shot dead while working his second job as a hotel security guard. The murder of Hardy, a 23-year veteran of the sheriff’s department, stunned his hometown of Birmingham, Alabama, and police worked frantically to solve the case. Then in a July 27 press conference, police announced a breakthrough: They had arrested four people for the murder, including a man named Toforest Johnson. Six days later, then-Governor Fob James issued a proclamation that anyone with information leading to the arrest and conviction of the killer would be rewarded $10,000. A local woman named Violet Ellison went to police soon after that and told them she had overheard a man bragging about Hardy’s murder over the telephone. She explained to investigators that her daughter, who would sometimes place three-way calls for prisoners at the Jefferson County Jail, made a call on Aug. 3, 1995, and left the room. Ellison told police she picked up the phone and heard a man who identified himself as “Toforest.” Ellison, according to court filings, said she heard the man boast, “I shot the fucker in the head and I saw his head go back and he fell” and then “Fella shot once.” Jefferson County District Attorney David Barber charged Johnson with capital murder. There was no physical evidence nor were there eyewitnesses, so Ellison was the star witness at Johnson’s 1998 trial. (She was also the star witness at his 1997 trial, which ended in a mistrial.) On the stand, she testified that she approached police six days after listening to the call because she had a guilty conscience and was having trouble sleeping. The account that Ellison said she heard over the phone contradicted testimony from hotel guests and the opinions of forensic experts, which both suggested the two fatal shots were fired in quick succession from the same gun. Yet lead prosecutor Jeffrey Wallace told the jury that Ellison was “some of the most important evidence one could find” because she didn’t have a stake in the trial’s outcome. At the conclusion of the trial, a judge sentenced Johnson to die. Johnson, who has been on death row for 21 years, has always said he is innocent. Now he has a chance at freedom. In June, his attorneys argued that the prosecution never told the defense that Ellison would be paid reward money for her testimony. It’s an issue they’ve raised since 2003, and one that they say is so significant that Johnson should be awarded a new trial because of it. Prosecutors for the state said that they had done nothing wrong, saying that Ellison didn’t know about the money when she testified. Jefferson County Circuit Court Judge Teresa Pulliam must now determine whether the prosecution’s failure to disclose that Ellison would receive reward money warrants a new trial.
Under the 1963 U.S. Supreme Court ruling Brady v. Maryland,
prosecutors must turn over all evidence that is favorable to the
defense, including evidence that could be used to challenge the
credibility of a witness. In 2017, the Court ordered
Alabama to hold a hearing to determine whether prosecutors may have
violated that decision, known as the Brady rule, by not telling the
defense about Ellison’s reward. In the
hearing on June 6, Ellison testified that she was not aware of the money
until 2001, when she was contacted by the state to retrieve it,
according to a report by WBRC 6.
Johnson’s attorneys, however, argued that documents the state turned
over this year in January show that Ellison did know about the money,
which motivated her to testify against their client. Those documents
included a 2001 letter from Jefferson County District Attorney David
Barber to then-Governor Don Siegelman, stating that Ellison, “pursuant
to the public offer of a reward,” had given information helpful to
convicting Johnson and should be paid $5,000. (Barber determined that
Ellison should receive half of the initial $10,000 reward because
Johnson was already in jail by the time she came forward.) Johnson’s
attorneys learned of the reward in 2003 and asked for documents about it
then. The state did not turn them over until 16 years later because the
district attorney’s office had “misfiled” them, Mike Lewis, a
spokesperson for Alabama Attorney General Steve Marshall told The Appeal
in an email. Marc
Bookman, a co-director of the Atlantic Center for Capital
Representation, told The Appeal that this information would have been
crucial during Johnson’s trial. “The
motivation of a witness is highly relevant in any case, and never more
so than when a death sentence is involved,” he said. “In a case where
the evidence of guilt is shockingly thin, a Brady violation
takes on great significance. If a witness testified because she was
aware of a reward, that would surely be evidence a jury should have
heard.” In
an email to The Appeal, Lewis said that the state did not violate the
Brady doctrine because Ellison was “unaware” of the reward when she
testified and “at the time of Johnson’s trial, the prosecutor was
unaware that Ellison would request the cash award several years after
the trial.” Johnson’s
attorneys declined to comment to The Appeal because the issue is pending
in court, but they have long alleged that, along with the reward money,
there is a wealth of information supporting his innocence that the jury
never got to consider. They largely attribute this to a poor
performance by his trial attorneys. The attorneys, they said in a 2005
filing, hired only one investigator, who had an IQ of 63 and drank at
least a quarter gallon of whiskey every day for 20 years, including when
he was working on Johnson’s case. Trial lawyers also failed to call
witnesses, Johnson’s legal team wrote, who could have testified that
there was a prisoner at the Jefferson County jail who they say
“routinely impersonated” Johnson and other prisoners when placing calls
to young girls in a bid to impress them. Nor did attorneys call a man
who was staying at the hotel the night that Hardy was shot and said he
saw a tall man walk away from Hardy’s body. (Johnson is 5 feet 5 inches
tall.) And trial attorneys either didn’t call or failed to properly
prepare at least 10 alibi witnesses who said they saw Johnson at a
nightclub at the time of the shooting, Johnson’s lawyers alleged. In
addition, police arrested Johnson and his co-defendant Ardragus Ford
based on the story of a 15-year-old girl who admitted on several
occasions, including under oath, that she had lied because she wanted
the reward money and then felt pressured by police to stick to her
story. At their trials, prosecutors offered opposing theories on who
shot Hardy: At Ford’s 1999 trial, they argued that Ford was the shooter,
and at Johnson’s trial, they told the jury that Johnson and a friend
had killed Hardy. Ford was acquitted of all charges.
If
Pulliam does grant Johnson a new trial, newly elected Jefferson County
District Attorney Danny Carr has the discretion to decide whether to
prosecute the case. Carr ran for district attorney as a progressive candidate
who pledged to ensure that his team complies with the Brady rule. But
even before Pulliam makes a decision, Carr could influence the case by
pushing for a new trial and asking Marshall to drop his challenges to
the claim that prosecutors had acted improperly. “There
is no question that the district attorney’s opinion in the jurisdiction
he was elected to serve carries a powerful moral force,” said Bookman,
“particularly in a capital case where there is the possibility of an
innocent man’s execution. If he feels that a new trial is appropriate,
one would hope he would say so.” Carr declined an interview with The Appeal, citing the ongoing litigation. In
addition to the claim before Pulliam, Johnson also has an appeal pending
in federal court that includes claims that Johnson’s trial attorneys
were ineffective, prosecutors violated the Brady rule, and also
illegally struck Black jurors. And in May, his attorneys filed a request that
the state throw out Johnson’s death sentence because Wallace, the lead
trial prosecutor, told them and Carr earlier this year that he had
“grave doubts” about Johnsons’s guilt. Wallace also backtracked on his
stance on Ellison’s testimony in 2014: “I don’t think the state’s case
was very strong, because it depended on the testimony of Violet Ellison
in my opinion,” he said in a post-conviction hearing. Ellison’s
daughter, Katrina, who testified for the state in 1998 about placing the
1995 phone call to the Jefferson County jail that led to Johnson’s
conviction, agreed. “I think he does deserve a fair trial,” she told The
Appeal. “The only thing they had was the phone call and that’s not
right. That wasn’t strong enough to hold, to convict somebody to death.” Alabama
courts have denied Johnson’s requests for a new trial two times in the
past, but his daughter, Shanaye Poole, told The Appeal that the latest
developments have sparked a newfound sense of hope for her family. Now
27, Poole was 5 years old when she watched a judge sentence her father
to die. “I just honestly can’t
wrap my mind around it,” she told The Appeal. “It’s hard for us but at
the end of the day my dad has been sitting there for 20-plus years. He
is who my heart breaks for every single day.”
https://theappeal.org/alabama-man-death-row-new-trial/-------------------------------------------------------------------
Read the AL.COM current story on the defence application for a new trial - with a link to the defence brief on the motion - at the links below.
https://www.al.com/news/2019/12/jefferson-county-judge-considers-how-witness-reward-affected-death-row-case.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
---------------------------------------------------------------
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.""
Lawyer Radha Natarajan:
https://www.providencejournal.com/news/20191210/da-drops-murder-charge-against-taunton-man-who-served-35-years-for-1979-slaying
---------------------------------------------------------------
