On a summer night in 1995, a sheriff’s deputy was shot and killed in a hotel parking lot in Birmingham, Alabama. When investigators arrived at the scene, they found no eyewitnesses and almost no evidence pointing to the shooter.
Detectives ultimately zeroed in on a man named Toforest Johnson, who on that same night was with friends at a nightclub miles away. Johnson was tried twice for the murder and eventually convicted on the testimony of an “earwitness” – a woman who claimed to have overheard Johnson confessing to the crime. He was sentenced to death and has spent more than 25 years on Alabama’s death row.
In 2019, investigative journalist Beth Shelburne began covering the case, finding details that cast major doubts about Johnson’s guilt. This week, in partnership with Lava for Good and the Earwitness podcast, hosted by Shelburne, we tell the story of Johnson’s case. First, Shelburne digs into the night of the murder and speaks to the lead investigator on the case.
Then, in conversation with host Al Letson, Shelburne walks through how Johnson was convicted, despite a lack of evidence and a solid alibi. She also shares the latest turn in Johnson’s case: Questions about the credibility of the earwitness have surfaced in the last few years, leading many Alabama politicians and attorneys to call for a new trial.
Alabama’s prison system doesn’t allow people on death row to talk to journalists, so Shelburne visits the people closest to Johnson: his kids. They share memories and their hopes for their father’s case. She also has a conversation with an unlikely supporter of a new trial: one of the people who had a hand in sending Johnson to death row.
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Credits
Reporters: Beth Shelburne and Maura McNamara | Producers: Maura McNamara, Hannah Beal and Jackie Pauley | Senior producer: Kara Kornhaber | Story editing: Marie Sutton | Fact checker: Catherine Nouhan | Engineering and sound design: Britt Spangler | Executive producers: Jason Flom, Jeff Kempler, Kevin Wortis and Beth Shelburne | Audio clips from the Earwitness podcast courtesy of Lava for Good. All rights reserved.
Producer for Reveal: Steven Rascón | Editors for Reveal: Jenny Casas, with help from Kate Howard | Fact checker for Reveal: Nikki Frick | General counsel for Reveal: Victoria Baranetsky | Score and sound design for Reveal: Jim Briggs and Fernando Arruda | Production managers for Reveal: Zulema Cobb and Steven Rascón | Interim executive producers for Reveal: Taki Telonidis and Brett Myers | Digital producer for Reveal: Nikki Frick | Host for Reveal: Al Letson
Support for Reveal is provided by the Reva and David Logan Foundation, the John D. and Catherine T. MacArthur Foundation, the Jonathan Logan Family Foundation, the Ford Foundation, the Hellman Foundation, the Robert Wood Johnson Foundation, and the Park Foundation.
Transcript
Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal’s radio stories is the audio.
| Al Letson: | From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. Bill Baxley is a lifelong defender of the death penalty. |
| Bill Baxley: | There’s some crimes that are so wrong and so horrible that they only deserve one punishment. |
| Al Letson: | When Bill was just 28 years old, he was elected as Alabama’s Attorney General. Today, he’s in his eighties and still practicing law. He’s prosecuted hundreds of cases and sent three people to the state’s death row. Bill’s son is also an attorney. A few years ago he gave his dad a case file, the case of a man who’d been sentenced to death, who he believed was innocent. Bill was skeptical. |
| Bill Baxley: | Over the course of my long career, I’ve had dozens and dozens of instances where these, I’ll call them do-gooders, but they’re good people. They take up various causes of people that have been sentenced to death and they get interested in trying to help them and they all think they’re always innocent. |
| Al Letson: | Bill didn’t even glance at the case file until weeks later on an icy winter morning. It was too slippery to walk down the driveway to grab the newspaper, so he picked up the file that his son sent him. |
| Bill Baxley: | I mean, mid-morning, I couldn’t believe what I was reading. |
| Al Letson: | The case was about a man named Toforest Johnson, who was sentenced to death for killing a sheriff’s deputy. Toforest has been on death row for a crime he says he did not commit for 25 years. |
| Bill Baxley: | I don’t know how the guy got indicted, how they got, I didn’t see how the jury convicted him. No question in my mind, this guy was not guilty of this crime and I couldn’t comprehend how this could happen. |
| Al Letson: | And Bill isn’t the only one. He’s one of many Alabama elected officials, prosecutors, and attorneys calling for new trial for Toforest. |
| Bill Baxley: | It is too late to give him back all those years he’s been on death row, but it’s not too late to correct it today and get him out for the future. |
| Al Letson: | Today, we’re partnering with investigative reporter Beth Shelburne, who’s been following Toforest’s case for the past few years. She’s the host of a new eight-part podcast series about her reporting called Earwitness. Beth starts by piecing together what happened the night of the murder. |
| Beth Shelburne: | The story begins on a hot July night in 1995. It unfolds in two places at once, the Crown Sterling Suites Hotel and a nightclub that’s four miles away called Tee’s Place. |
| Speaker 4: | Birmingham 911. |
| Barry Rushakoff: | Yes, ma’am. This is Barry from Crown Sterling Suites Hotel in Birmingham, Alabama. I’m calling because I’ve had several guests report what appears out the window to have been two gunshots and people running in the parking lot. |
| Beth Shelburne: | The Crown Sterling Suites Hotel was a nine-story building in Birmingham. Today, the hotel is an Embassy Suites. It was here where a deputy sheriff was killed. No one saw the murder, but a few people heard gunshots. |
| Barry Rushakoff: | I remember hearing popping noises from the distance. |
| Beth Shelburne: | Barry Rushakoff was working at the front desk when he made that 911 call. |
| Barry Rushakoff: | When I heard it, I believe that’s when I tried to call Officer Hardy on the radio with no response. |
| Beth Shelburne: | Officer William Hardy, who went by Bill, had been a deputy with the Jefferson County Sheriff’s Office for 23 years. He was also a security guard at the hotel where he worked the night shift to make extra money. Hardy was 5′ 10, had a thin mustache and wore his hair in a jheri curl. He was known to be easygoing and friendly. |
| Barry Rushakoff: | When I worked there and when I was working nights, it was me, Officer Hardy, and I never felt unsafe. |
| Beth Shelburne: | Barry wasn’t the only person to hear the popping noises. |
| Barry Rushakoff: | I believe I got a phone call from someone in the room saying they heard gunshots. I jumped over the counter to walk back. There’s a hallway that went to the door that went back out to the back parking lot. As I turned the corner to go down that hallway and I looked out the door in the distance, I saw Officer Hardy on the ground. |
| Speaker 4: | Birmingham 911. |
| Barry Rushakoff: | Yes, ma’am. This is Barry from Crown Sterling Suites Hotel again. |
| Speaker 4: | Yes. |
| Barry Rushakoff: | I have what appears to be a Jefferson County police officer shot in the back of our building. He is not moving. People in the car drove away. |
| Speaker 4: | And you said, is he in uniform? |
| Barry Rushakoff: | He’s lying on the pavement. I’m a little afraid to go out. |
| Speaker 4: | Is he in uniform? |
| Barry Rushakoff: | Yes, he is. |
| Speaker 4: | A Birmingham police officer? |
| Barry Rushakoff: | Jefferson County. He is a hired nighttime security for us. |
| Speaker 4: | Hey, do you know if you can find out anything like if he’s breathing, is he conscious and how much blood? |
| Barry Rushakoff: | I’m trying, ma’am. My problem is I don’t know if the people are still out there. |
| Speaker 4: | Okay, we should be there shortly. [inaudible 00:05:29]. |
| Barry Rushakoff: | Thank you very much. I’m going to go and try to look at him. |
| Speaker 4: | [inaudible 00:05:31] Okay. |
| Barry Rushakoff: | Thank you. |
| Speaker 6: | Jefferson County deputy that’s been shot on the back entrance of the hotel, Crown Sterling Suites. It is one of us and they have got one down. He has been shot. |
| Speaker 7: | And they said it looked bad. |
| Speaker 6: | And it looks bad. |
| Barry Rushakoff: | And then I went back out to the Officer Hardy. He was not in good condition. He did have a wound to his face. He was making a gurgling, gasping noise. He was not conscious. I believe I took my jacket off, my uniform jacket off, to try to cover him or put under his head or try to comfort him, but fortunately, officers arrived so quickly and I was removed from that area immediately. |
| Beth Shelburne: | More than a dozen officers from four different agencies arrive at the hotel. One of them is Detective Tony Richardson who says he’d known Deputy Hardy since he first started working for the Jefferson County Sheriff’s Office in 1978. |
| Detective Tony …: | Being Black, and Bill being Black, naturally I noticed him. |
| Beth Shelburne: | Tony Richardson and Bill Hardy had been colleagues at the Jefferson County Sheriff’s Office for 17 years. |
| Detective Tony …: | And he would put on his hat. He wore that hat religiously. Everybody else at the sheriff’s office hated those hats. They didn’t want to wear them, but he always wore his hat. |
| Beth Shelburne: | Deputy Hardy often wore his traditional broad brimmed, Smokey the Bear-style sheriff’s hat. It was later entered as evidence from the crime scene with a bullet hole through the brim. |
| Detective Tony …: | The last day I saw Bill, my brother and I, my brother worked for the sheriff’s office also, and we were standing there smoking and Bill drove out the alley and he started to talk to us. And he said, “Hey guys, how y’all doing?” And we laughed and talked for a minute and that was the last time I saw him. And the next time I heard Bill’s name was about 2:00 in the morning when I got the call saying that he had been shot. |
| Beth Shelburne: | Deputy Bill Hardy is pronounced dead seven hours after he was shot. |
| Just a few hours before Deputy Hardy is shot, Ardragus Ford gets into the passenger side of his 1971 Black Monte Carlo. It’s an old car and the driver’s side door doesn’t open, so he slides over into the driver’s seat, starts the ignition and heads out to pick up his friend Toforest Johnson to go to a club called Tee’s Place. I wasn’t able to interview Toforest or Ardragus. The Alabama Department of Corrections doesn’t allow people on death row to do interviews with reporters. And Ardragus died in 2021. I was able to speak to Ardragus’ mother, Joyce Ford. | |
| Joyce Ford: | That particular night, they said they was going to Tee’s. And see, he would go to Tee’s every Tuesday and he had his particular same parking space and everything because he would give them good tips. |
| Beth Shelburne: | Ardragus was willing to pay for a good parking space because he was in a wheelchair. When Ardragus was a teenager, a group of men began shooting outside an apartment building he was visiting. He was shot trying to shield his cousin and her baby from gunfire. |
| Joyce Ford: | He got a spinal cord injury, got shot in the back. |
| Beth Shelburne: | And he was paralyzed. |
| Joyce Ford: | Paralyzed from the chest down. |
| Beth Shelburne: | In his early twenties, Ardragus outfitted his Monte Carlo with the makeshift system so he could throw his wheelchair in the back and drive the car using just his upper body. |
| Joyce Ford: | He would cut a broom, the broom sticks. He would have one to the brakes, one to the accelerator, and he would tape it to the car. |
| Beth Shelburne: | Ardragus and Toforest actually came up with this idea together. Could he get around well? Did he drive well? |
| Joyce Ford: | Real well. |
| Beth Shelburne: | It’s been a while since Toforest and Ardragus have hung out, because Toforest had recently gotten out of prison. He was arrested for driving with a suspended license, and as officers patted him down at the city jail, he tossed something into a nearby trash can. Officers reached into the can and found a plastic bag of cocaine. Toforest ended up pleading guilty to drug possession. Toforest served about a year in prison and by the night of Hardy’s murder, he’d been out about three months. Toforest puts on jean shorts and a Tommy Hilfiger blue and white shirt, then gets into the passenger side of Ardragus’s car and they head downtown. |
| They pull up and park outside T’s Place, but it’s too early to go inside so they hang out in the parking lot, flirting with some girls who work at the car dealership across the street. Toforest buys a hot dog from a cart on the sidewalk. Regulars start trickling into the club, drinking, dancing and catching up. Inside there’s thumping music, low lighting. It’s Tasty Tuesday at Tee’s Place, which means women get in free. | |
| Barbetta Hunt: | I used to go to Tee’s Tuesday, Thursday, Friday and Saturday. |
| Beth Shelburne: | Barbetta Hunt was one of the regulars who was there that night. What was your nickname back then? |
| Barbetta Hunt: | Mama Cat. |
| Beth Shelburne: | That’s like, in the world of nicknames, that’s the best nickname I’ve come across. |
| Barbetta Hunt: | My mother, Essie Perkins, my father, Fred Perkins, they gave me that name when I was born, so that’s my name. My name is Mama Cat. |
| Beth Shelburne: | When she was in her early twenties, Mama Cat spent a lot of nights hanging out at Tee’s Place. |
| Barbetta Hunt: | When you walk into the door, that’s my spot right there. It’s on the right hand side. Every time, that was my spot. Me and my friend, Velonique Sanders, we was together. We got there before 11 because the club was always free on Tuesday, Thursday, and Saturday before 11 for women. |
| Beth Shelburne: | This is Velonique Sanders, nicknamed Queasy. |
| Velonique Sande…: | Anything after 11, it was $5. And me and Barbetta was very cheap, so we tried to make sure we got there in free because the little money we had saved, we wanted to buy something to eat. |
| Beth Shelburne: | Did you know Toforest Johnson? |
| Velonique Sande…: | Yes, I did. I knew him from hanging out in the neighborhood in Ensley. And oh my God, I had a crush on him. He was the finest. Yes, he was a ladies’ man, I will say that. Sweet, always kind. He was just a nice gentleman, like his mama had raised him really well. |
| Beth Shelburne: | Toforest walks toward the club’s entrance behind Ardragus and his wheelchair. They’re focused on meeting girls and having a good time. They don’t know that this night will change their lives and the people they run into don’t know they’re about to become alibi witnesses. Mama Cat and Velonique are already inside, perched at their table right by the front door. |
| Barbetta Hunt: | Toforest Johnson, I remember he was pushing Ardragus Ford in the wheelchair. They came together. |
| Velonique Sande…: | I had saw Toforest pushing Ardragus in the club, because we always sat at the front by the door so we can be nosy and see everything. |
| Beth Shelburne: | You wanted to see who was coming in and who was leaving with who. |
| Velonique Sande…: | Yes. Yes, ma’am. |
| Beth Shelburne: | Toforest and Ardragus settle in at a table chatting with people who stop by, watching the dance floor. Four miles away at the Crown Sterling Suites Hotel, Lead Detective Tony Richardson and his team of investigators have no eyewitnesses to the shooting and there’s no known motive. A fellow officer has just been shot and they have almost no evidence to go on. |
| Detective Tony …: | When I was a deputy sheriff working another deputy sheriff’s murder … Do you think that was emotional? Yes, it was very. And had it been my decision, the day we caught the people that did it, let’s put them on death row. |
| Al Letson: | So how do Toforest and Ardragus end up at the center of the sheriff’s office investigation? We sit down with Beth to talk through the shreds of evidence the police and prosecutors put together. |
| Toforest Johnso…: | And he asked my daughter to use her three-way to call for his homeboy and he named the fellow’s name is Toforest Johnson. |
| Al Letson: | That’s next on Reveal. |
| From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. The only time reporter Beth Shelburne saw Toforest Johnson in person was in a courtroom in 2019. Beth was covering a hearing in his case for Birmingham, Alabama’s TV news station, WBRC. At that point, he had been on death row for 20 years. Back then, she didn’t know much about the case, mainly that Toforest had been convicted of murdering a deputy sheriff named Bill Hardy and that he’d always maintained his innocence. Beth didn’t realize in the courtroom that Toforest’s case would become her central reporting focus for the next three years and beyond. She’s the host of a new podcast called Earwitness and she’s here with me to pick up the story where we left off. | |
| Hey Beth, how are you? | |
| Beth Shelburne: | I’m doing well. Thanks for having me on, Al. |
| Al Letson: | We left off with Ardragus and Toforest leaving a nightclub called Tee’s Place. How did they go from there to being a part of this investigation? |
| Beth Shelburne: | Yeah, it’s a long and complicated story that we really try to carefully unwind in detail in the podcast. But basically, what you need to know is the detectives who were investigating Deputy Bill Hardy’s murder had almost no evidence to go on and the lead investigator, a man named Tony Richardson, was under a lot of pressure to solve the case. |
| Detective Tony …: | You want somebody in custody and not only do you want somebody in custody, the lieutenant is telling me, we need to get this done. The captain is telling the lieutenant, we need to get this done. The sheriff is telling the captain, we need to get this done. |
| Beth Shelburne: | So detectives really needed help from the community. Because there was almost no physical evidence, there were no eyewitnesses to the murder, police asked for information from the public and they offered a reward and that reward was mentioned in all of the TV news coverage and newspaper stories and it got the phones ringing. And one of those calls led investigators to a 15-year-old girl named Yolanda Chambers. |
| Detective Tony …: | Sergeant Tony Richardson, I’m at the Sheriff’s Office headquarters along with Officer James Blanton of the Birmingham Police Department and Yolanda Michelle Chambers. Yolanda is a Black female, she’s 15 years of age. |
| Beth Shelburne: | So we know that Toforest and Ardragus picked up Yolanda Chambers after they left Tee’s Place nightclub. When Yolanda first talked with detectives, she was reluctant. She didn’t want to talk to them and she told them several different stories. One of them was that she was with Toforest and Ardragus at the Crown Sterling Suites when Deputy Hardy was killed. But every time she talked to detectives, her story changed. She ultimately implicated six different people in the murder over the course of the investigation. She actually changed details of her story more than a hundred times. |
| Al Letson: | Geez, a hundred times? That is a lot. |
| Beth Shelburne: | Yeah. Over the course of the investigation, police interviewed Yolanda at least 25 times. And you would expect a lead witness in a high profile murder case to be interviewed a few times, but 25 interviews is extraordinary. And she was in this room with a group of detectives who told her she could be charged with a crime if she didn’t give them information about the murder. |
| Al Letson: | And it’s worth mentioning again that at this point Yolanda Chambers is 15 years of age. She’s a kid. |
| Beth Shelburne: | 15 years old, interviewed without her mother or her attorney. And so even though her interviews were all over the place, Detective Tony Richardson and his team went with the version of Yolanda’s story that put Toforest and Ardragus at the crime scene that night. |
| Detective Tony …: | Did I believe everything Yolanda told me? No. Hell no. Hell no. But Yolanda told a lot of truth while she was trying to hide it by telling lies. |
| Al Letson: | So what about Toforest’s alibi, all the people that saw him at the club that night? Did Toforest tell detectives about that? |
| Beth Shelburne: | Yes, he did, repeatedly. Toforest and Ardragus both told detectives when they were brought in for questioning a few days after the murder and they even told them who they saw that night. |
| Toforest Johnso…: | One female name is Queasy. |
| Detective Tony …: | Queasy. |
| Okay, go ahead. | |
| Toforest Johnso…: | One female name is Mama Cat. Her number is 785- |
| Beth Shelburne: | So when I look back at the case files to see if police had followed up, I found two interviews they did with Toforest’s alibi witnesses. |
| Detective Tony …: | This is Sergeant Tony Richardson, Jefferson County Sheriff’s Office. I am on the phone with Barbetta, and that’s spelled B-A-R-B-E-T-T-A, Hunt, also known as Mama Cat. Do you remember where Toforest Johnson was on the night of July the 18th or the morning of July the 19th? |
| Barbetta Hunt: | Yes I do. |
| Detective Tony …: | Okay. Can you tell me where? |
| Barbetta Hunt: | Well, I saw him at Tee’s Place. |
| Detective Tony …: | You saw him at Tee’s Place? |
| Barbetta Hunt: | Yes, I was with my friend, Velonique Sanders. |
| Detective Tony …: | I am on the phone with Velonique Sanders. Velonique is also known as Queasy. All right, is there any particular reason that you remember the time that they got there and the time that they left? |
| Velonique Sande…: | Yes, the time that they got there, my friend, Barbetta Hunt, her beeper had went off and I remember her telling me what time it was. |
| Beth Shelburne: | They both tell Detective Tony Richardson that they saw Toforest Johnson at Tee’s Place nightclub between 11:30 PM and 1:30 AM. And of course, Officer Bill Hardy was shot right in the middle of this timeframe. What was strange about finding these conversations in the investigative file is that when I interviewed Tony Richardson, he told me emphatically that no alibi witnesses ever came forward. So after I found these interviews, I went back to him and I showed him what I found and he couldn’t remember why he didn’t believe these alibi witnesses. Even though he clearly spoke to at least two people who confirmed Toforest’s alibi, he continued building a case against Toforest Johnson using the story of Yolanda Chambers. |
| Detective Tony …: | Evidence-wise, we didn’t have virtually, well we had virtually no evidence. We had the word of a 15-year-old who told lies, a lot of lies, and we were like, “Man, what are we going to do? How are we going to win this?” |
| Al Letson: | I know where this story ends. So how did they get a conviction? |
| Beth Shelburne: | Well, prosecutors from the DA’s office led by a man named Jeff Wallace started putting together their cases against Toforest and Ardragus. And all told, Jeff Wallace oversaw four separate trials in this murder. Ardragus was tried twice and the case against him was built using Yolanda Chambers as a witness. Ardragus’s family was able to pull together enough money to hire a star defense attorney. And during the trial, that attorney was able to point out all the times Yolanda’s story changed, showing the jury that she just wasn’t a credible witness. Ardragus’s first trial ended in a mistrial. In the second, the jury found him not guilty. Jeff Wallace also tried Toforest twice for the murder, but Toforest’s family did not have the money or resources to hire an outside lawyer. So he was represented by two attorneys appointed by the court. His first trial also ends in a mistrial, but in both of Toforest’s trials, the prosecution used a totally different strategy. |
| Jeff Wallace didn’t use Yolanda Chambers as a witness at all against Toforest. Instead, the case was built on a totally different witness, an ear witness. | |
| Al Letson: | What is an ear witness? I’ve never heard this term before. |
| Beth Shelburne: | An ear witness is like an eyewitness except instead of seeing something, they heard something and that’s what their testimony is about, what they claim to have heard. |
| Al Letson: | Who is this ear witness? |
| Beth Shelburne: | Her name is Violet Ellison. She knew Deputy Hardy. She had met him through his wife. She called investigators in the early days of the investigation, about a week after the governor had doubled the reward for information to $20,000 and she ended up being the key evidence used to link Toforest to the murder. |
| Speaker 13: | Ms. Ellison, we received a telephone call from you today. Would you tell us about the information that you have for us? |
| Beth Shelburne: | So Violet Ellison came to see detectives with a pretty convoluted story, but here’s how it went. She had a 16-year-old daughter named Katrina, and Katrina had a friend who was incarcerated at the Jefferson County Jail. As a favor, Katrina was making three-way phone calls for him and other guys in the jail. Basically, they would call their house phone, they would give her the phone number of whoever they wanted to talk to. Katrina would dial it, merge the calls into a three-way and then put the phone down. Violet Ellison did not like her daughter making these phone calls for people in the jail and she asked her to stop. And when Katrina continued making the calls, Violet Ellison decided to listen in. |
| Violet Ellison: | And he asked my daughter to use her three-way to call for his homeboy, and he named the fellow’s name as Toforest Johnson. |
| Al Letson: | I remember those days back when you shared a phone and anybody in the house could pick it up and listen in. |
| Beth Shelburne: | Absolutely, yeah. This was back in the heyday of landlines, 1995 when three-way calling was like high tech stuff. But yeah, this is happening three weeks after the murder. At this point Toforest was in jail. And Violet Ellison tells police on this first call that she eavesdrops on, she overhears Toforest talking about the murder. This interview with police lasts about seven minutes. Police listen to her, they take down her statement and then they don’t mention her again for another two years until the first trial against Toforest. |
| Detective Tony …: | We got a full table now. We got all the evidence we need. Well, not that we need, we’d like to have a lot more, but we got evidence. |
| Beth Shelburne: | So on the stand, Violet Ellison tells the jury that she overheard Toforest bragging about killing Deputy Hardy to his friend, a young woman named Daisy. It’s important to remember, there’s no recording of this call, we are just relying on Violet Ellison’s word. But when Daisy is called to the stand, she testifies that Toforest never said these things. Toforest didn’t take the stand in the trials, but he has denied saying these things to police. But ultimately, the jury found Violet Ellison to be very credible. I spoke with one member of the jury named Monique Hicks. |
| Monique Hicks: | She just seemed very truthful. We believed her. Obviously, we believed her because we convicted him and it was on her testimony. |
| Beth Shelburne: | It was 1998, 3 years after the crime and Toforest was found guilty and sentenced to death. When I first heard about Toforest Johnson, I was just told there’s a man on Alabama’s death row who has been claiming innocence and the key evidence against him is a single witness, an ear witness who claims she overheard him over the phone talking about the murder. And I thought, surely that can’t be true. There’s got to be more evidence to land someone on death row, but in fact, that is the state’s case against him and Toforest has been on death row now for 25 years. |
| Al Letson: | Could any of this happen again today, trying somebody with just an ear witness and no physical evidence? |
| Beth Shelburne: | Yes, it could absolutely happen now and it is still done in courts across the United States. That might sound extraordinary or outrageous to you and me, but the state is allowed to pursue multiple theories for the same crime. They can also get a death row conviction on purely circumstantial evidence, and they do. And the quality of representation for the defendant, that’s a pretty typical issue for people who end up on death row. After Toforest was convicted, a group of attorneys from the Southern Center for Human Rights in Atlanta began representing him and they were looking for pieces of his case they might use on appeal. They zeroed in on the ear witness, Violet Ellison. Here’s Ty Alper, one of Toforest’s attorneys. |
| Ty Alper: | So the next step was, okay, well, were there questions about her credibility that the jury never heard? |
| Beth Shelburne: | So Ty and the rest of the legal team begin looking into why Violet Ellison came forward to police and any possible motivations for her testimony. |
| Ty Alper: | And an obvious one was, well was she paid for her testimony. So we knew the reward was offered because it was all over the papers, but we didn’t know who got it or if Violet Ellison got it. |
| Beth Shelburne: | Their thinking was if they could prove that she was paid and they weren’t told about this payment, Toforest might possibly be able to get a new trial. And to be clear, being paid a reward, there’s nothing illegal about that. Rewards are often offered in high profile murder cases, but it cannot be kept from the defendant, his lawyers, or the jury. You know how you’ll hear people ask witnesses, have you been promised anything? She was never asked this question. So they end up going to Violet Ellison’s house and ask her and she confirms that she was paid $5,000 after the trial. But the state responds by denying that this payment ever happened and this entered years of litigation and it went on and on, and Toforest’s attorneys still couldn’t get all of the documentation surrounding the payment until they learned about this confidential reward file kept in the District attorney’s office and got a judge to order the state to turn over all records in that file connected Toforest. And they finally got the undeniable proof, a copy of this $5,000 check paid to Violet Ellison after Toforest’s conviction that nobody knew about. |
| Al Letson: | So does it work? Does the revelation of a secret award payment get to force a new trial like they hoped? |
| Beth Shelburne: | So far, it hasn’t. I began covering this case when this specific issue was in court in 2019 and Violet Ellison told the judge she didn’t know about the reward money when she testified on the stand and that had nothing to do with her motivation for coming forward. The judge believed her and denied Toforest’s appeal for a new trial. But these revelations about this secret reward payment brought a lot of new attention to his case, a lot of people hear about this and are outraged that this happened. People in and outside of Alabama are calling for a new trial for Toforest. And as long as he’s alive, he maintains hope that this momentum will keep building. People will keep learning about his case and his attorneys also have several more appeals in state and federal courts, so they’re hopeful too and they plan to keep fighting until the end. |
| Al Letson: | If he does not get a new trial and the appeals don’t go his way, when is he scheduled to be executed? |
| Beth Shelburne: | He has not been scheduled to be executed and that cannot happen until these appeals that are still pending in court make their way through the courts. I don’t think that there’s a specific timeframe, but his attorneys have said he at least has another couple of years. But when you’re on death row, that’s not very long. |
| Al Letson: | Thank you for your reporting and bringing this story to is Beth. |
| Beth Shelburne: | You’re welcome. It was a pleasure. |
| Al Letson: | Our conversation was produced by Reveal’s production manager, Steven Rascon. Coming up, Beth talks to the most unlikely supporter of Toforest getting a new trial. |
| Jeff Wallace : | We had a weak case. It’s based on the testimony of one witness. |
| Al Letson: | That’s next on Reveal. |
| From the Center for Investigative Reporting and PRX, this is Reveal. I’m Al Letson. | |
| Speaker 17: | (singing) |
| Al Letson: | Near the intersection of Rosa Parks Avenue and Liberty Street in Montgomery, Alabama is a tiny red brick church, St. Peter AME. Outside, a large white banner is stretched 25-feet across the church’s front lawn. The words, “It’s not too late to fix this mistake” are written across the banner in black and red letters. The banner was made by an organization called Greater Birmingham Ministries. The mistake it refers to is Toforest Johnson’s conviction. |
| Speaker 18: | Lord, cry out for our dear Toforest Johnson and his family. Oh Lord God, we’ll be carrying that banner. |
| Al Letson: | This year, the banner has traveled to different churches across the state to raise awareness of Toforest’s case, awareness that is growing. |
| Lindsey Boney: | Holy cow. |
| Nick Gaede : | It’s just ridiculous. |
| Carla Crowder: | This case is shameful. |
| Lindsey Boney: | My name is Lindsey Boney. I’m a lawyer at the law firm, Bradley Arant Boult Cummings. When I think about this case, it’s mind-blowing to me. |
| Carla Crowder: | My name is Carla Crowder. I’m a lawyer and executive director at Alabama Appleseed Center for Law and Justice. Lots of people have known for a very long time that this man is innocent and he’s still on death row. Why does it take 25 years? |
| Nick Gaede: | My name is Nick Gaede. I have been a active lawyer in Birmingham since 1964. We can do better and we need to do better. |
| Al Letson: | These are just a few in the chorus of powerful voices calling for a new trial for Toforest. Faith leaders, judges, former prosecutors, lawyers from all sides of the political spectrum, the current district attorney of Jefferson County, they’ve all spoken up about it in the last few years. Reporter Beth Shelburne, host of the podcast, Earwitness, has been following Toforest’s case for years. She’s interviewed dozens of people for this story, but never Toforest himself. Alabama’s prison system doesn’t allow people on death row to talk to journalists. So Beth turned to the people closest to him, his kids. |
| Beth Shelburne: | I’ve been writing about your dad’s case for about two years. |
| In October of 2021, I asked Toforest’s kids if we could all get together and talk. So we meet up on a Saturday afternoon at his oldest daughter, Shanaye Poole’s place. His kids immediately start to share memories of their dad. | |
| Maurice: | I remember going and realizing how short he was though. He’s so short when we took a picture on side of each other- |
| Shanaye Poole: | Yes. I have a picture of y’all, Maurice, you tower over daddy and I’m his same height. |
| Beth Shelburne: | Toforest has five kids. Four were able to come to our meeting. There’s Tremaine, Maurice, Shanaye, and Akeriya, who goes by Muffin. An inside joke among these siblings is that they all share a common attribute from their dad. |
| Tremaine: | Man, we all got these big heads, if you haven’t noticed. |
| Shanaye Poole: | Like the forehead. |
| Tremaine: | That’s what’s really big. It’s the forehead. |
| Beth Shelburne: | Shanaye was six years old when she saw her dad sentenced to death. After his conviction, she recalls having to piece together why her father wasn’t home. |
| Shanaye Poole: | I didn’t realize that that wasn’t normal until we get into grade school and I see children with their two parents home. And so now, I’m like, “Okay, this is not adding up. Something is not right. So help me understand what’s happening.” And then it’s like, “Okay, well he’s away, but he’s innocent.” “So what does innocent mean? I’m a kid, I don’t understand what that means.” “He’s there for something that he didn’t do.” “Okay, well why can’t he just come home?” |
| Beth Shelburne: | Even though their father wasn’t at home Toforest’s kids didn’t stop seeing him. They would get in the car with their grandmother, Donna, Toforest’s mother, to make the 210 mile drive from Birmingham to Holman Prison three hours each way. |
| Akeriya : | I just remember always riding- |
| Shanaye Poole: | That long ride. |
| Akeriya : | [inaudible 00:38:09] and I was so young and I was like, oh my, this is the longest car ride. |
| Tremaine: | It’s almost like you driving to Florida going down there. |
| Beth Shelburne: | The visits were just a few hours, once a month at most, but it’s where and how they got to know their father. They admire his strength, the way he loves to hear about their lives when they talk on the phone and how he never makes them feel like their problems are small. |
| Shanaye Poole: | When he calls you and you just want to talk about the good things. And he’s lived his life too, so he’s, all right. So now what’s really going on? I can hear it in your voice. Okay, princess, something’s not right. And I never like to tell him anything bad, because there’s nothing that he could do, but he’s like, this is my way of being a father to you. This is how I can parent you, so allow me to do that. And then you feel so much better after you talk to him about it. |
| Tremaine: | Because he going to make you laugh. |
| Akeriya : | Oh, he’s going to make you laugh. He going to make you laugh. |
| Tremaine: | He’ll keep you laughing, I promise. |
| Akeriya : | I’ll be like, okay, I’m not mad anymore. Yeah, thank you. Right. And he always asks, so what’d you eat? I never want tell him what I ate for dinner. Never, because- |
| Tremaine: | I don’t either. |
| Akeriya : | I hate telling him. |
| Tremaine: | I know he can’t eat the same. You know what I’m saying? |
| Akeriya : | Yeah. |
| Beth Shelburne: | But he wants to know what you ate. |
| Akeriya : | He wants to know or he wants what we did today if he would be on the phone with Tremaine and Maurice. Yeah, I talked to Tremaine and Maurice the other day and they were out somewhere. But he won’t say they were, he be like we were, so he’s living through my brothers. Whatever they do, he thinks he’s out with them. Yeah. |
| Beth Shelburne: | Today Shanaye is 31 and has followed every step of her dad’s case. |
| Shanaye Poole: | At this point, we’re not trying to point the finger at anybody. We want true justice to be served and we just want him to come home and for there to be some type of accountability held. He’s missed the birth of multiple grandchildren. He’s missed milestones, us completing college and getting our first big girl jobs and purchasing our first homes. These are really important things that he has missed out on. We’re still hurting, we’re still angry, we’re still confused, upset. We have a lot of emotions, but we just want him to come home. |
| Beth Shelburne: | But Toforest can’t come home unless a court overturns his conviction. Even though the courts say he’s guilty, many people are advocating for a new trial, including the current district attorney of Jefferson County, Danny Carr. And one of the most significant and surprising supporters is the man who tried this case four different times in four different ways, Jeff Wallace. |
| Yeah. | |
| Jeff Wallace: | I’m Jeff Wallace. |
| Beth Shelburne: | Nice to see you, Jeff. I’m Beth Shelburne. |
| Jeff Wallace: | May I call you Beth? |
| Beth Shelburne: | You can call me Beth. Can I call you Jeff? |
| Jeff Wallace: | Please do. |
| Beth Shelburne: | Okay, great. I have four hours of on-the-record interviews with Jeff. He was accessible and generous with his time, but he was also careful with his words. Take, for instance, this exchange about Violet Ellison, the ear witness who provided the key testimony used to convict Toforest, the same ear witness who it was later revealed was paid by the state because her testimony led Toforest’s conviction. |
| Jeff Wallace: | I still am personally satisfied that the evidence showed Toforest Johnson to be guilty. Of course, my opinion is based in large part on the testimony of the Violet Ellison that I saw at trial. But in my opinion, there’s a reason to look at it again. |
| Beth Shelburne: | This is what I mean by careful. He says the evidence at trial showed Toforest to be guilty, but he also says he supports the call for a new trial. After my first conversation with Jeff in 2021, I did a lot more investigating into Violet Ellison. At Toforest’s trials, prosecutors presented her as a concerned mother troubled by her conscience, because Toforest’s conviction hinged on her credibility, I wanted to get to know Violet, who she is and what her motivations were for coming forward. Through my reporting, I discovered that Violet Ellison has been a witness for the state in four other criminal cases. |
| I spoke with some of her family members and they said they weren’t surprised by this, especially in Toforest’s case because there was a reward involved. Separately, I learned that she was in a precarious financial position burdened by medical debt. I spoke with Violet Ellison only once. The conversation was on her porch early on in my reporting. In it, she said she didn’t know about the reward until she was paid. After learning more about her, I tried to contact her again, but she never responded to my interview requests. I asked to speak with Jeff again because I wanted to share everything that I learned about Violet Ellison. | |
| We also found that in addition to being a witness in this case, Violet Ellison has been a witness in four other criminal cases in Jefferson County. | |
| Jeff Wallace: | After the Johnson case? |
| Beth Shelburne: | Before, during, and after. I tell Jeff about the other cases where Violet Ellison was a witness for the state. He listens politely, but what I really want is for Jeff Wallace to hear some clips of what people are saying about Violet Ellison, the star witness he put on the stand. Do you have any interest in listening to what we found? |
| Jeff Wallace: | No. |
| Beth Shelburne: | You don’t? I find that astonishing. I don’t know. Can you explain why you don’t want to hear what we found? |
| Jeff Wallace: | I’m not the prosecuting attorney in the case. |
| Beth Shelburne: | Yeah, but Jeff, you tried this case and you asked the jury to sentence him to death and he’s on death row. |
| Jeff Wallace: | That was the state of the evidence when I was standing in the courtroom. |
| Beth Shelburne: | The evidence hasn’t changed in your mind after what we’ve told you? |
| Jeff Wallace: | No. I think the evidence has changed, but it’s no longer my responsibility. |
| Beth Shelburne: | In a way, he’s right. The responsibility of all death row cases after conviction falls to Alabama’s Attorney General. The current attorney general in Alabama is Steve Marshall. Marshall’s office is still actively and aggressively fighting Toforest’s appeals and seeking his execution. I’ve emailed the AGs office about this multiple times and they have not responded to my specific questions or granted me an interview with anyone from their office. It does seem like there are a lot of silos that people are in, in the system. |
| Jeff Wallace: | It does, and if a silo is a thing that you cannot climb out of, then that’s where I am. I’ve told you what I think. If it were legal and it were presented to me, would you or would you not order a new trial, Mr. Wallace? I would sign it today and order a new trial, but the thing you’re calling a silo, my silo is a retired former prosecutor who happened to have been in charge of this case at one time. The law has set up these silos and the law is still in effect. |
| Beth Shelburne: | Yeah. There’s this quote on the outside of the Jefferson County Courthouse that- |
| Jeff Wallace: | We’re in bondage to the law in order that we may be free. |
| Beth Shelburne: | That’s it. “We are in bondage to the law an order that we may be free.” It’s a quote from Roman philosopher Cicero. Why do we have to be in bondage to something to be free? |
| Jeff Wallace: | Either we have laws or we don’t. Which way do you want it? |
| Beth Shelburne: | I guess one thing that we’ve been thinking about is what is the cost of that bondage, and is it that sometimes you end up with situations like this? |
| Jeff Wallace: | I sure hope not, but the law is the law. I’m in bondage to the law. |
| Beth Shelburne: | You may see Jeff Wallace’s support for a new trial as a half measure. He could call the case an injustice and take more accountability for his role in Toforest’s conviction, but a trial prosecutor saying anything that calls a conviction into question is exceptional. There’s no incentive for Jeff Wallace to say a word, no framework for prosecutors to voice doubt or space for regrets to count. This is how our system works. According to the courts that have examined Toforest Johnson’s conviction, it’s not broken. It’s working exactly as designed. |
| Speaker 27: | This is a free call from- |
| Toforest Johnso…: | Toforest Johnson. |
| Speaker 27: | … an incarcerated individual at Alabama Department of Corrections. This call is not private. It will be recorded and may be monitored. You may start the conversation now. |
| Shanaye Poole: | Hey, daddy. |
| Toforest Johnso…: | Hey, princess. |
| Shanaye Poole: | What you doing? |
| Toforest Johnso…: | I’m good. How was your day? |
| Shanaye Poole: | It was good. Long today, still trying to get used to- |
| Al Letson: | One of Toforest’s appeals for a new case made it all the way up to the United States Supreme Court. In early October, the court declined to review his case. Toforest’s legal team has appeals pending in both state and federal courts. You can listen to all of Beth Shelburne’s reporting on the Earwitness podcast. In it, she goes in depth through the investigation, each of the trials, and of course, the ear witness. |
| The Earwitness podcast is a production of Lava for Good in collaboration with Signal Company Number One. The Earwitness team includes executive producers, Jason Flom, Jeff Kempler, Kevin Wortis and Beth Shelburne, senior producer Kara Kornhaber, reporter and producer Maura McNamara, producers Hannah Beal and Jackie Pauley. Story editing was done by Marie Sutton and fact checking by Catherine Nouhan, engineering and sound design by Britt Spangler. Today’s show was edited by Jenny Casas with help from Kate Howard. Nikki Frick is our fact checker. Victoria Baranetsky is our general counsel. Our production managers are Zulema Cobb and Steven Rascon. Score and sound design by the dynamic duo, Jay Breezy, Mr. Jim Briggs, and Fernando, My man yo, Arruda. | |
| Our CEO is Robert Rosenthal. Our COO is Maria Feldman. Our interim executive producers are Taki Telonidis and Brett Myers. Our theme music is by Comarado Lightning. Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D and Catherine T MacArthur Foundation, the Jonathan Logan Family Foundation, the Robert Wood Johnson Foundation, the Park Foundation, and the Hellman Foundation. Reveal is a co-production of the Center for Investigative Reporting and PRX. | |
| I’m Al Letson, and remember, there is always more to the story. |