A group of former prosecutors has filed a brief urging a Jefferson County judge to grant a new trial for Alabama Death Row inmate Toforest Johnson.
“Given that both the current Jefferson County District Attorney and the original line prosecutor recommend a new trial for Mr. Johnson, this Court should grant the relief they request,” said the brief, which was signed by 10 former state and federal prosecutors, including former Alabama Attorney General Bill Baxley and former U.S. Sen. Doug Jones.
The brief, called an amicus brief because it comes from someone who isn’t a direct party in the case, was filed on Wednesday.
“It is unusual for a district attorney to advocate for a new trial, and we believe the courts should honor that request,” the brief said, referencing Jefferson County District Attorney Danny Carr’s motion for a new trial.
It added that the 10 prosecutors who signed on “take no position on Johnson’s claims of innocence.”
Johnson’s case has been in the spotlight for years. Johnson, now 52, was convicted of capital murder in 1998 for the 1995 death of Jefferson County Deputy William G. Hardy, who was shot to death while working a part-time security job for a Birmingham hotel. Johnson has been on Alabama Death Row since 1998 for the killing, which he has always denied.
The case has been in legal limbo for years as appeals played out in different courts. But in 2020, Carr voiced his concerns about Johnson’s case and asked for a new trial.
In Wednesday’s filing, the former prosecutors urged that their work doesn’t end with a jury’s verdict. “It is the continuing duty of a prosecutor to seek justice and uphold the Constitution,” read the brief. “We believe that, when a prosecutor seeks to uphold the highest standards of fidelity to the Constitution, the rule of law, and to the prosecutor’s professional ethical obligations, courts should pay special attention to their requests.”
While the filing wasn’t in response to Alabama Attorney General Steve Marshall’s words in the case — his office has previously said the case didn’t present an issue of “extraordinary public importance”— the former law enforcement officials said that they came to a different conclusion than Marshall.
In addition to Baxley and Jones, the former prosecutors who signed on the brief are Ramona Albin, Darius Crayton, Adolph Dean Jr., Robin Mark, Blake Milner, Chinelo Dike-Minor, Arthur Green Jr., and Lane Hines Woodke.
Also on Wednesday, The Innocence Project filed a separate amicus brief supporting a new trial. The Innocence Project, a nonprofit organization that provides legal services to inmates across the country, said that Johnson’s case “presents extraordinary and unprecedented facts that have developed since Toforest Johnson’s conviction in 1998.”
“A comprehensive review of the evidence reveals why a reasonable prosecutor would now lack confidence in Mr. Johnson’s conviction and exposes the fundamental weaknesses in the case against Mr. Johnson,” the brief read. “Physical evidence contradicts the State’s key witness…Prosecutors advanced shifting and conflicting theories about who committed the crime. Meanwhile, unchallenged alibi witnesses who were never presented at trial place Mr. Johnson miles away at the time of the murder.”
“Viewed together, these facts reveal a more than reasonable basis for concern about the viability of the conviction—and show that the conviction cannot be allowed to stand.”
The brief continued, “When viewed together, they expose a conviction built on a foundation that has crumbled.”
Alabama Appleseed, a nonprofit legal group, filed a third amicus brief on Wednesday asking for a new trial. The group said in its filing that Johnson’s case “provides an opportunity for consideration of extraordinary circumstances in which the passage of time and improvements in the administration of justice render a verdict or sentence unreliable.”
Their filing noted several Alabama cases where local prosecutors “acknowledged the injustice of the outcomes sought and achieved by their predecessors and stepped in to correct those injustices years after the petitioners’ fates seemed sealed.”
But despite Carr, who wasn’t in office when Johnson was convicted, and the man who actually prosecuted the case questioning the conviction, Marshall’s office has said Johnson belongs on death row. In a January court filing, the AG’s Office argued Johnson shouldn’t be allowed to litigate the same claims again. The court records “speak for themselves,” the office said.
And Carr’s opinion “does not provide an independent, viable legal claim,” Marshall’s office wrote.
The Innocence Project’s filing said the attorney general’s office “misses the fundamental point” that prosecutors must pursue justice, even after a conviction.
“A system that wholly ignores a prosecutor’s determination that his own conviction lacks integrity cannot claim to serve justice.”