By Barnett Wright
The Birmingham Times
Former Alabama Attorney General Bill Baxley has never been one to shy away from supporting the death penalty. When the U.S. Supreme Court outlawed the death penalty in the 1970s, it was Baxley who worked to bring executions back to Alabama.
But there is one death penalty case in his home state that has his attention: that of Toforest Johnson, 51, who is on death row at William C. Holman Correctional Facility in Atmore, AL after being charged with the 1995 killing of William Hardy, a Jefferson County deputy sheriff. Hardy was working security for a Birmingham hotel while off-duty from his official law enforcement position.
Baxley was skeptical when his son, who is also an attorney, asked his dad to look over a case because he believed an innocent man was on death row.
“By mid-morning I couldn’t believe what I was reading” in the file, said Baxley in a podcast interview with journalist Beth Shelburne. “I don’t know how the guy got indicted, I couldn’t see how the jury convicted him, I would never believe that could happen in Alabama. No question in my mind that this guy was not guilty.”
On Sunday a Faith Rally was held at Birmingham’s Tabernacle Baptist Church in support of Johnson that featured his family, legal team and Shelburne, the former television anchor/reporter and host of the podcast “Earwitness”, a two-year investigation into Johnson’s conviction, that included clips from Baxley and others.
Shelburne said Sunday she interviewed over 100 people, went through thousands of pages of transcripts and documents and spent hundreds of hours researching the case.
“Why and how did an innocent man end up on death row? and why is he still there? Why is Toforest Johnson still on death row when our elected district attorney reviewed the case and called for a new trial with the support of the original prosecutor? It just doesn’t make sense,” she said.
After doing her own reporting “along the way I came to the same conclusion that his family has been after since day one, that he absolutely nothing to do with this murder,” she said. “… and it’s in everybody’s interest to make sure this is set right.”
“A chorus of powerful voices” have looked at the case, Shelburne continued, including people who support the death penalty, elected officials, judges, both former and current, prosecutors, former jurors, who served on the case who have come forward saying at if they knew then what they know now they would not have voted for guilt, she said.
During the rally, Shelburne held a conversation with Antonio “Tony” Green”, Toforest’s first cousin and longtime supporter and Akeriya “Muffin” Terry, 28, Johnson’s youngest daughter.
Shelburne said she was unable to speak to Johnson directly for the podcast because Alabama’s Department of Corrections doesn’t allow people on death row to speak to journalists.
“I’m totally for justice,” Green said. “Anyone who has committed a crime, especially of this magnitude, should be punished, but you should be sure you are punishing the person that committed the crime. To see a family member, to see a total stranger, suffering like this is painful. It’s painful to know this type of injustice is taking place especially in the state, the city, the county that I love.”
Terry, who was a toddler when her father was convicted, said he “has been here, but he hasn’t been here. It has affected the family tremendously because I’ve had some milestones in my life that I wished he was there, but I can only send pictures of things that I have achieved like graduation, college, having kids and getting married,” she said. “He is not there to physically hug me, kiss me and tell me how proud he is. I can only hear it on the phone or in a letter.”
In October, the U.S. Supreme Court declined to review Johnson’s case, whose appeal was based on a reward paid to a key witness for the prosecution.
The state argued that Johnson’s attorneys had not proven their assertion that the key witness in the 1998 murder conviction testified in hopes of receiving a $5,000 reward from the governor. Marshall’s office said there was no evidence that the witness, Violet Ellison, knew about or hoped to get the reward when she took the stand.
Johnson’s attorneys said in their appeal that the state concealed the reward payment for 18 years.
“The public cannot possibly have confidence in the system if the state of Alabama is permitted to execute Johnson when it paid its key witness $5,000 in secret and both the District Attorney and the trial prosecutor support a new trial,” Johnson’s lawyers wrote.
Johnson’s case had reached the Supreme Court before. In 2017, the justices ruled in favor of Johnson and sent the case back to the state.
The appeal then moved through the state court system for years. The Alabama Supreme Court declined to review Johnson’s conviction in December 2022.
In 2020, Jefferson County District Attorney Danny Carr voiced concerns about Johnson’s case and asked for a new trial. He wrote in a court filing, “It is the District Attorney’s position that in the interest of justice, Mr. Johnson who has spent more than two decades on Death Row, be granted a new trial.”
The original prosecutor also supported Carr’s motion.
In addition to Baxley, former Alabama Chief Justice Drayton Nabers was among numerous lawyers, former judges and prosecutors who have voiced support a new trial for Johnson. Other supporters include former U.S. Attorney Joyce White Vance, the late former magistrate Judge John Carroll, and three former jurors on the case.