New Eyes On Alabama Death Row Case After Integrity Review Raises Questions Former prosecutors and judges say Toforest Johnson's murder conviction was based on shaky evidence. The case is getting a new look as district attorneys review the integrity of past prosecutions.

New Eyes On Alabama Death Row Case After Integrity Review Raises Questions

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What happens when a district attorney suspects that a past miscarriage of justice put a man on death row? Well, one answer is playing out in Alabama, where pressure is mounting to grant a new trial for a man convicted on scant evidence of murdering a sheriff's deputy more than 20 years ago. Now prominent legal voices, including former prosecutors, are getting behind the legal push to reexamine the case. As NPR's Debbie Elliott reports, it is one of dozens getting a new look as district attorneys around the country review the integrity of past prosecutions.

DEBBIE ELLIOTT, BYLINE: Toforest Johnson was 25 years old when he was sentenced to death in 1998 for the killing of a sheriff's deputy outside Birmingham. His oldest daughter, Shanaye Poole, now 29, remembers being in the courtroom.

SHANAYE POOLE: I just wanted to talk to him. He looked so handsome. He had a suit on. And, of course, I didn't really know what was going on. I may have been 4 or 5 years old at the time. And I saw him walk away, and that was the last day of his freedom.

ELLIOTT: Ever since, Johnson has maintained his innocence, and his family has worked to overturn what they see as a wrongful conviction.


ANTONIO GREEN: Hello, how are you?


GREEN: Good.

ELLIOTT: Antonio Green, Johnson's cousin, has come to Poole's Birmingham home to talk about the lingering questions over Johnson's case.

GREEN: The records that the courts have say that there is no way you can take a man's life based on what you have.

ELLIOTT: The cousins were roommates when Johnson was arrested in the murder of Jefferson County Sheriff's Deputy William Hardy, shot to death while working an off-duty security detail at a hotel in 1995. It was a high-profile murder with few clues and no eyewitnesses. The state put up a $5,000 reward. Toforest Johnson became a suspect based on a tip from a teenager who later admitted she was after the reward money and changed her story dozens of times.

In a series of trials, prosecutors raised conflicting theories as to who the shooter was. Defense witnesses gave Johnson an alibi. After a hung jury, Johnson was prosecuted a second time and convicted based on the testimony of one person - not an eyewitness but an earwitness, a woman who overheard a jailhouse phone conversation in which someone named Toforest said he shot a deputy. Green, who says he supports the death penalty, still can't understand how his cousin was convicted of murder.

GREEN: They had no evidence, no reason, no justifiable reason to say this is our man, and we know it.

POOLE: Yeah. So it really opened my eyes to the fact that, unfortunately, the justice system is not equal.

ELLIOTT: Prosecutors never revealed they paid the witness $5,000. That issue is before a state appeals court. But a broader legal groundswell is underway after the Jefferson County district attorney reviewed the case and sought a new trial last summer. Toforest Johnson's daughter, Shanaye Poole, says finally, people are listening.

POOLE: We have some very powerful and influential people that have rallied behind my family and my father. We're very hopeful that, you know, we'll be able to bring him home.

ELLIOTT: Among the influential voices calling for justice is former Alabama Attorney General Bill Baxley, who worked in the 1970s to have the death penalty reinstated. His son, also a lawyer, asked him to look at Toforest Johnson's case. Baxley says at first, he was skeptical. Then he read the documents.

BILL BAXLEY: I couldn't believe what I was reading. It was just unconscionable.

ELLIOTT: He was stunned by the lack of evidence against Johnson, particularly the earwitness. Baxley says overhearing a phone conversation is shaky.

BAXLEY: Now, this lady that testified to that had never met Toforest Johnson. She had never heard him speak. She didn't - as we used to say when I was young in Alabama, didn't know him from Adam's house cat.

ELLIOTT: Baxley and other former state and federal prosecutors have joined in a friend-of-the-court brief to intervene in the case.

BAXLEY: It's terrible that he's been on death row all these years, but there's still time to correct the injustice and keep it from getting worse.

ELLIOTT: And it's not only prosecutors weighing in. Former judges filed a brief calling the case a, quote, "reprehensible miscarriage of justice that may otherwise lead to the execution of a likely innocent man." It's signed by two former chief justices of the Alabama Supreme Court. There's a brief from legal scholars, another from faith-based groups and from public defenders and the criminal defense bar, all represented by some of Alabama's most prestigious law firms.

JOYCE WHITE VANCE: This is extraordinarily unusual.

ELLIOTT: University of Alabama law professor Joyce White Vance is a former U.S. attorney for the Northern District of Alabama who signed on the prosecutor's brief. She says this case comes as more and more district attorneys are looking back with a new racial justice lens, establishing units to make sure prior convictions stand up.

WHITE VANCE: Since 2002, these conviction integrity units have processed more than 400 cases where people were wrongfully convicted. So most of the time, law enforcement gets it right. Most prosecutors are fine people who are committed to fairness and justice. But it's clear that there are some flaws in the system, and it's our obligation to correct those.

ELLIOTT: Jefferson County DA Danny Carr had promised during his campaign to establish a conviction integrity unit. The Toforest Johnson case was among the first to get reexamined. Carr declined an interview with NPR. Birmingham attorney Lindsey Boney represents the Innocence Project in Johnson's case. He says Carr's motion for a new trial is groundbreaking.

LINDSEY BONEY: He met with witnesses and with the victim's family, and he met with the line prosecutor. And last June, Danny Carr said, I think Toforest Johnson deserves a new trial. And that was a very significant bombshell filing. The courts that now have jurisdiction over this case ought to take notice that there's something here.

ELLIOTT: What's striking is that Carr says the original lead prosecutor has concerns about the case and supports a new trial. Boney says the legitimacy of the judicial system is at stake.

BONEY: It really is a case where the state should step back.

ELLIOTT: But Alabama's top law enforcement officer, Attorney General Steve Marshall, is fighting Johnson's death row appeal. He declined an interview. A spokesman says the office has not taken a position on all the briefs seeking a new trial because those legal filings are on hold until the reward money disclosure issue is resolved.

POOLE: Oh, here's a group picture.

ELLIOTT: Shanaye Poole keeps old photographs of her playing with her father when she was a toddler. In this one, her dad has squeezed his grown body into a child's backyard play set.

POOLE: Look at this one. You can just see the joy on his face. I love that picture of him.

ELLIOTT: Toforest Johnson is now 48 years old and has been on Alabama's death row for nearly half his life. His five children are grown and have children of their own. Poole says they maintain their bond through Friday visits and lots of phone calls and letters. Poole says her dad has not given up on the justice system. She's optimistic they're at last getting the traction they need to clear his name.

POOLE: My hope is that Toforest Johnson will be the reason why the next man won't have to go through two decades behind bars for something that he or she didn't do.

ELLIOTT: Poole says her father's case is not an anomaly but a symptom of a system that needs repair.

Debbie Elliott, NPR News, Birmingham.


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