U.S. Supreme Court won’t review Toforest Johnson case

The U.S. Supreme Court Monday refused to review the case of Alabama death row inmate Toforest Johnson, whose 1998 murder conviction has drawn criticism from advocates and prosecutors, including a former Alabama attorney general.

The justices dismissed Johnson’s petition for a writ of certiorari without comment.

Johnson has other appeals pending.

“The Supreme Court only reviews a small fraction of the cases that come to it,” said Ty Alper, one of attorneys representing Johnson in a written statement. “While we wish they had chosen to take a closer look at Mr. Johnson’s case, we are looking forward to returning to the appeal that we have pending in Jefferson County, where the district attorney has already called for a new trial.”

Messages were left with the Attorney General’s Office seeking comment.

A jury convicted Johnson in 1998 of the  death of off-duty Jefferson County Deputy Sheriff William Hardy, who was moonlighting as a security guard for a hotel in Birmingham.  Hardy was shot and killed while investigating a noise in the hotel’s parking lot.

Johnson and another defendant, Ardragus Ford, were tried at separate trials for the same crime.

Both maintained their innocence in Hardy’s murder, and there was no physical evidence linking either to the incident. Both individuals were tried twice after the jury in each of the cases was unable to agree on a guilty verdict. Ford was acquitted, but Johnson was convicted and sentenced to death.

Johnson’s conviction came in part from testimony from a woman named Violet Ellison, who said she heard Johnson confess to the murder while on a three-way phone call in jail. Ellison had never met Johnson or heard his voice.

Following the conviction, Johnson’s attorneys learned that Ellison claimed $5,000 from the state in reward money. Johnson’s attorneys argued in appeals prosecutors withheld that information, which could have been used to challenge Ellison’s credibility.

The U.S. Supreme Court remanded the case back to the state in 2017.

During a lower court hearing, the district court granted Johnson’s request for discovery to obtain all materials related to the award payment, but the state did not disclose any documents that provided details of the award payment.

A retired secretary and office manager from the district attorney’s office later told Johnson’s defense team that the office maintains a secret award file that had documents about reward payments to witnesses. The state furnished the file containing the document and the award. Within that file is a copy of a check for $5,000 made out to Ellison.

Attorneys for the state then acknowledged the payment but told the court that Ellison was not made aware of the payment until 2001, three years after Johnson’s conviction. The district court then ruled against Johnson, which the Alabama Court of Criminal Appeals upheld on appeal.

Johnson’s team then petitioned the U.S. Supreme Court, challenging Alabama’s claim that Ellison did not know about the payment until after Johnson’s trial had concluded.

“Under existing state law, Ellison would not even have been eligible for the reward if she did not know about the offer when she came forward and testified,” Johnson’s attorneys wrote. “The only reasonable interpretation of the evidence is that the State knew Ellison was seeking the reward from the start, which is why it paid her in the end.”

Multiple people have come forward in defense of Johnson, including former Attorney General Bill Baxley and Jefferson County District Attorney Danny Carr. A gathering was hosted in April to make people aware of Johnson’s case.

Johnson’s case has gained national attention, spawning a podcast that is investigating his case.

“This is an extraordinary case in which even the prosecutor who put Toforest Johnson on death row has called for a new trial,” said Beth Shelburne, a former television journalist who hosts the new series in a news release. “That is unheard of. The elected District Attorney says it’s one of the worst cases he’s ever seen — yet Toforest remains on death row.”

Johnson’s attorneys filed a petition in Jefferson County circuit court in December 2020, seeking to vacate Johnson’s conviction and death sentence. Carr filed a brief supporting the petition.

“After reviewing the circumstances of Mr. Johnson’s conviction and his subsequent Brady claim, the District Attorney has determined that its duty to seek justice requires intervention in this case based on a couple of factors.”

Among them is that the prosecution admitted to paying the witness without telling the defense. It also included testimony from witnesses claiming Johnson was on the other side of town and that the prosecution presented several theories of the crime, a few of which did not include Johnson.

The case is pending.