More than 20 years after Birmingham, Alabama, prosecutors secured a conviction and death sentence against a man who has long maintained his innocence, the city’s district attorney has stepped in and is advocating for a new trial.
The request, made in a court filing by Jefferson County District Attorney Danny Carr on Friday, marks the latest development in the case of Toforest Johnson, who in 1998 was sentenced to die for the 1995 shooting death of an off-duty sheriff’s deputy.
“A prosecutor’s duty is not merely to secure convictions, but to seek justice,” wrote Carr in a brief filed with the Jefferson County Circuit Court on Friday. Carr said he reviewed Johnson’s conviction and a claim of prosecutorial misconduct and “determined that [the DA’s] duty to seek justice requires intervention in this case.”
Carr, who ran for district attorney in 2018 on a progressive platform, had previously declined to comment on his position on the case.
Johnson’s attorney, Ty Alper, called Carr’s filing a “very big development.”
“We are grateful to DA Carr for standing up for truth and justice,” Alper told The Appeal. “We are looking forward to getting Mr. Johnson back home with his family.”
In the filing, he pointed out that the state tried multiple times to win convictions against Johnson and his co-defendant using “as many as five different theories” related to the identity of the person who shot dead the deputy, William Hardy, who was working his second job as a hotel security guard at the time.
Police arrested Johnson and his co-defendant, Ardragus Ford (Ford was acquitted of all charges in 1999), based on the story of a 15-year-old girl who had later admitted on numerous occasions, including under oath, that she had lied to police and prosecutors. She said she made the claims because she wanted the reward money that had been announced shortly after Hardy’s death and then felt pressured by police to stick to her story.
There was no physical evidence or eyewitnesses tying Johnson to the crime. The state’s star witness at his 1998 trial was a woman who said she had heard a man who identified himself as “Toforest” boast about killing Hardy. She claimed she heard the assertion while she was eavesdropping on a three-way call she had placed to the county jail three weeks after Johnson’s arrest. Neither the defense nor the jury were told that the woman would receive $5,000 from the state for her story. The state has said it did nothing wrong because the woman did not know about the money when she testified.
In March, a Jefferson County circuit court judge denied Johnson’s request for a new trial. In his request, Johnson argued that prosecutors had committed a constitutional violation by not disclosing that the witness would receive money in exchange for her testimony. Johnson’s attorneys have since appealed that decision.
There were at least 10 alibi witnesses who trial attorneys either didn’t call or failed to properly prepare who could have testified that Johnson was at a nightclub in a different part of the city at the time of the shooting, Johnson’s attorneys have said in court filings.
Carr isn’t the only prosecutor who has sought to intervene. The lead trial prosecutor, Jeff Wallace, told Carr and Johnson’s attorneys last year that he had “grave doubts” about Johnson’s guilt and the credibility of the state’s star witness. Carr said Wallace backed his request for a new trial. In his filing, Carr noted these as reasons supporting his position that Johnson should be retried.
Attorney General Steve Marshall is representing the state as Johnson’s attorneys pursue their appeal. Carr could use his influence as district attorney to ask Marshall to drop his challenges to the case and agree to a new trial, legal experts say.
“There is no question that the district attorney’s opinion in the jurisdiction he was elected to serve carries a powerful moral force,” Marc Bookman, co-director of the Atlantic Center for Capital Representation, told The Appeal last year of Carr’s potential impact.
Johnson’s daughter, Shanaye Poole, said that she is “grateful” for Carr “fulfilling his duty to do what justice requires.”
“There is no time like the present. I believe that, in the current climate of the world, we are witnessing a renewed appreciation for justice,” she said. “For now, we are pressing forward more hopeful than ever that my dad will return home.”