The state of Alabama is still seeking to execute Toforest Johnson despite harrowing claims from prosecutors, investigators and even the jury that found him guilty that he was convicted of a crime he may not have committed.
Toforest Johnson, 49, was sentenced to death in 1998 for the murder of a Jefferson County sheriff’s deputy, even though investigators admitted there was no physical or forensic evidence proving he was responsible.
The ‘smoking gun’ in the case was a jailhouse phone call allegedly eavesdropped by a woman on a third-party call, where she claims she heard Johnson admit to shooting the deputy.
Now, more than 19 years after the trial, it has emerged that she was paid $5,000 for her testimony, amid claims Johnson was simply recounting the allegations that led to his arrest.
‘I think we convicted an innocent man. I feel grief deep in my soul,’ said juror Monique Hicks. Her distressing sentiment was echoed by fellow juror Jay Crane, who admitted: ‘They don’t have the right person in prison.’
At least 14 former judges, prosecutors and officials – including the man who secured his conviction – have called for it to be overturned with Johnson and at least 10 witnesses claiming he was in a club on the other side of Birmingham, Alabama at the time of the shooting.
The father-of-five has now sat on death row for 25 years pleading his innocence.
His heartbroken daughter Shanaye Poole told DailyMail.com: ‘This is so much larger than Toforest Johnson… how did we get here?’
Toforest Johnson has languished on death row for 25 years for a murder some prosecutors, attorneys and even his own jurors claim he did not commit
Despite waiting decades for execution while pleading his innocence, Johnson’s daughter Shanaye told DailyMail.com he is ‘one of the most positive people you could meet’
Johnson (seen in a recent picture from Alabama’s death row) will have his case reviewed by the US Supreme Court on October 2
Despite languishing on death row for decades, Johnson’s loved ones said he has always remained ‘hopeful’, with his landmark case set to be heard by the US Supreme Court on October 2.
Beth Shelburne, an investigator who has covered Johnson’s case for over three years, told DailyMail.com that the inmate’s incarceration is a mystery given the numerous voices calling for a retrial.
‘It’s appalling that there would be this much support behind a new trial… and the state is still actively seeking Toforest’s execution,’ she said, noting that the renewed push for a retrial has now been fueled by Jefferson County District Attorney Danny Carr following a nine-month review of the case.
Shelburne is set to cover Johnson’s case in new Lava for Good podcast ‘Earwitness’ premiering on September 19, in which she said it all boils down to one question: ‘What is he still doing there?’
Johnson’s conviction in 1998 was his second trial after the first resulted in a hung jury the year before, with prosecutors only securing a conviction after a different version of events were allegedly testified to.
He was on trial for the execution-style shooting of Jefferson County Deputy Sheriff William Hardy, who was shot twice in the back of the head while working as an off-duty security officer at a hotel in 1995.
The Alabamian was hastily arrested within hours alongside five other black men. Three were released, and investigators had no witnesses or forensic evidence to tie Johnson or co-defendant Adragus Ford – who was acquitted in a separate trial – to the alleged murder.
Investigative reporter Beth Shelburne has condemned the execution as ‘appalling’. She is set to cover the case in upcoming podcast ‘Earwitness’
With little else to go off, authorities issued a $5,000 reward – which eventually grew to $20,000 – for information, which led to a flurry of tips from the public. According to Shelburne, the vital tip that landed Johnson behind bars came from a 15-year old girl who later admitted to telling hundreds of lies.
This girl’s “mother contacted police and said she had information about the murder, then immediately hired a lawyer trying to pursue the reward money,’ she said.
Shelburne said when the 15 year old girls’ story fell apart, investigators turned to another witness, a so-called earwitness, a mother who had a teenage daughter who helped her boyfriend make three-way phone calls from the jail without using all his quarters. The mother eavesdropped in on one of these calls and claims she heard Johnson confess to the crime.
This earwitness ‘became the star witness – even though this was the only evidence connecting Toforest to the murder,’ Shelburne said.
Johnson was convicted for the execution-style shooting of Jefferson County Deputy Sheriff William Hardy, who was gunned down while working security at a hotel in 1995
Shanaye Poole (far left) told DailyMail.com that despite his death penalty conviction hanging over him for two decades, Johnson has ‘never used his situation as an excuse to be an absent father’
Johnson’s daughter Shanaye Poole was just five years old when her father was convicted, and said she has vivid memories of watching her father being dragged away for the rest of his life.
After making too much noise while ‘not understanding what a trial even was’, she was escorted out of the courtroom; Poole recalled ‘being put on my cousin’s shoulders, and I could see through the court window my last vision of my dad as a free man.’
The woman who testified against Johnson admitted to having never met him or heard his voice before the phone call, and Shelburne said the person Toforest was calling told her that ‘he said none of the things that she testified to.’
She added that the woman originally came to police with a mild version of the phone call, which escalated and changed over the course of several trials to where she testified to grisly details of the alleged confession.
With Toforest coming from a low-income background in the deep south, he couldn’t afford an attorney and was assigned one by the state. At the time in Alabama, court appointed lawyers were paid just $20 per hour for work outside the courtroom, with a $1,000 cap.
‘That is appallingly low,’ Shelbourne said. ‘In contrast, Toforest’s co-defendant Adragus Ford’s family were able to hire one of the top criminal defense attorneys in the southeast… and Adragus was acquitted.’
The two were given separate trials for the same crime, and prosecutors argued directly contradicting theories in both cases. Ford was acquitted, and Johnson’s first trial resulted in a hung jury.
The father-of-five remained in custody. Despite his lawyers presenting 10 different witnesses who testified that Johnson was partying in a club on the other side of the city at the time of Hardy’s shooting, the then-21-year-old has not seen freedom since.
The father-of-five has remained in constant contact with his family behind bars, as his daughter said they have ‘never doubted his innocence for a second’
Despite claims he was merely recalling the allegations against him during the fateful jailhouse call, the eavesdroppers’ testimony was enough for prosecutors to secure not only a guilty verdict, but a death penalty conviction.
Over 19 years later, documents that were allegedly ‘misfiled’ surfaced, showing the so-called ‘earwitness’ was paid $5,000 for testifying in court, information which was never revealed to the jury.
‘Was my dad’s life worth a $5,000 cheque?’ Poole lamented.
‘Clearly she couldn’t have been considering that this person was a son, he’s a father, now he’s a grandfather, he was a brother, and he had all that taken away from him.’
Despite her father being locked in death row through most of her life, Poole said he has ‘never used his situation as an excuse to be an absent father, ever.’ She recalled being obsessed with the Tweety Bird cartoon as a child, and he would make sure to send her cards with the character on them at any opportunity.
Over two decades after Johnson’s conviction, a new DA reviewed his case and determined that he deserves a new trial
‘He always found a way to be a parent and to father me, even with the time and space between us,’ she added. ‘I would ask him all the time, ‘How do you stay so positive?’ – I’ve rarely heard my dad frustrated or down.’
Another aspect of the trial that has cast doubt over the conviction was the apparent insistence of prosecutors to land a guilty plea, as they eventually arrested four other black men and one black girl for the crimes related to Hardy’s murder, and argued a different theory over the shooter in each case.
At trial, the state alleged that each of the men was the only killer, because forensic evidence proved there was only one assailant.
The harrowing case has sparked an outpouring of support in Birmingham, Alabama
Supporters of Johnson’s retrial launched a ‘banner tour’ to bring attention to his case, with promotions insisting ‘it’s not too late to fix this mistake’
Former Alabama Attorney General Bill Baxley, a staunch supporter of the death penalty, has condemned the state’s attempts to execute Johnson after reviewing his case
Notably, a death sentence conviction in Alabama is only overturned by the state’s attorney general, which is still arguing for his execution. But the state’s former hardline Attorney General Bill Baxley, who led the charge in Alabama in the 1970’s to reinstate the death penalty and is a staunch advocate for the punishment, is among the strongest voices condemning the scheduled execution.
Baxley says the case landed on his radar when his son, an attorney, asked him to review it. While at first skeptical, especially as proclamations of innocence are hardly rare on death row, after he pored through the court documents Baxley says he was stunned.
‘I couldn’t believe what I was reading,’ he told the Associated Press. ‘I was just dumfounded that, in Alabama, a case as weak as that would have gotten to the jury, much less a death sentence… It was just unconscionable for this to stand.’
Baxley’s calls for a retrial come as District Attorney Carr has urged officials to grant Johnson a review, filing an amicus brief in June 2020 calling for his conviction to be thrown out and ‘a court of competent jurisdiction’ to hold a new trial.
‘A prosecutor’s job is not merely to secure convictions, but to seek justice,’ he said at the time, feeling that duty ‘requires intervention in this case.’
Despite the complexities of overturning a death sentence, Shelburne said many involved in the case are buoyed by the example of Anthony Ray Hinton, who sat on the same death row as Johnson for 28 years before he was exonerated in 2015.
Hinton was also prosecuted by the same district attorney who sent Johnson behind bars, one reason Shelburne says her initial reaction to hearing Johnson’s side was that it ‘wasn’t shocking to me that somebody innocent could end up on death row.’
Johnson’s supporters say they are buoyed by the example of Anthony Ray Hinton, who sat on the same death row as Johnson for 28 years before he was exonerated in 2015
While her hopes have been raised that her father may see a retrial, Poole also condemned how alleged mistakes decades ago have devastated not only his life, but also the lives of his loved ones.
‘These are people’s lives that we are putting into the hands of others,’ she said.
‘With my father’s case, there was so much oversight, and maybe there wasn’t as much diligence put into investigating, utilizing resources – there were so many witnesses who continue to speak on my father’s behalf.’
Shelburne said her upcoming series is the result of three years of work on the case, but intends it to be a broader statement on the ‘many terrible issues that thousands of people deal with in our criminal justice system.’
‘First and foremost, Toforest is black, and black people are disproportionately arrested, prosecuted, convicted and sentenced to prison in the United States, certainly in Alabama,’ she said.
Across the US, the nation’s prison population is 38 percent black, despite just 14.2 percent of the US population being black. In Alabama, 54 percent of the prison population is black, compared to just 26 percent of the state’s population, according to Prison Policy.
The phone call confession that was used as the only evidence against Toforest was allegedly merely a recounting of the allegations that led to his arrest
Now two weeks out from the Supreme Court’s decision over whether to take his case to a retrial, Shelburne said Johnson – who spends almost 23 hours a day in a 5×8 foot cell – is in good spirits as he awaits his fate.
‘Internally, he is settled,’ Shelburne said. She added that she has not spoken personally with Johnson due to Alabama’s strict laws on communication within death row, but has spoken to numerous relatives, attorneys and elected officials who are in contact with him.
‘He obviously wants to get out and wants to be with his family and wants this nightmare to end but internally, he knows that he did nothing wrong, and he is able to find a lot of comfort and peace in that.’
‘In America, many people believe that everyone who ends up on death row is there because they deserve to be there and because there is scientific proof that they committed heinous crimes, and this is not the case,’ she concluded.
While Poole said her father has remained upbeat behind bars against all odds, she lamented how the allegedly flawed trial has devastated his life.
‘He’s in a 5×8 foot ell every day all day,’ she said. ‘It’s obviously very repetitive. He has no access to a TV in his cell only one occasionally in a common area, while showers aren’t allowed on a daily basis.
She said as a pre-teen, having a father on death row brought up a mixture of emotions, as coming to accept the situation brought on anger, loneliness and confusion why she didn’t have a dad at home like her friends.
‘When I got older, I thought I understood what the justice system proclaims to be. I was frustrated, like ‘okay dad, you say you’re innocent, but innocent people don’t go to prison… if you’re not supposed to be there, then why can’t you just come home?’
Despite everything, she said she remains hopeful her father might be freed to see her unborn child, which she is expecting in the coming year.
‘I have never for one second doubted his innocence,’ she said.
Source of data and images: dailymail