This Is Not About Justice
Toforest Johnson is a Black man on death row in Alabama for a crime he didn’t commit.
Mr. Johnson was convicted and sentenced to death in 1998 at his second trial for a 1995 murder. The only evidence against him was a tip from a teenage girl who changed her story multiple times, whom prosecutors themselves called a liar, and Violet Ellison’s claim that she overheard Mr. Johnson admitting to the crime by surreptitiously listening in on a three-way call connected by her daughter. Ms. Ellison received a $5,000 reward, which was not revealed to defense attorneys until seventeen years after the trial, which is about as clear a Brady violation (which should nullify the conviction) as you’ll find. Multiple witnesses placed Mr. Johnson at a location far away from the site of the murder at the time it was alleged to have occurred. The current district attorney in the jurisdiction where Mr. Johnson was prosecuted has filed a motion to vacate the conviction and grant a new trial. The original prosecutor also supports a new trial, but the state attorney general is fighting against it.
I’ve known about this case for nine years. Now the world knows about Toforest Johnson, thanks to Earwitness, a Lava for Good podcast by journalist Beth Shelburne. It’s an excellent podcast in all ways—dramatic, compelling, yet accurate — but it’s been taking me a while because it’s also painful to listen to, especially when you know what’s coming.
Stephen Bright and I began our recent book, The Fear of Too Much Justice, with the story of Glenn Ford because it contained so many of the elements that go wrong even in—especially in—death penalty cases: inexperienced and underfunded defense lawyers, failure by the prosecution to disclose exculpatory evidence, a trial of a Black man decided by an all-white jury in a courthouse with a Confederate memorial, and an innocent man spending three decades in prison until prosecutors admitted they didn’t have a valid case. The only unusual thing about Mr. Ford’s case is that, thirty years after the trial, the lead prosecutor apologized for pursuing a conviction instead of justice.
Toforest Johnson’s case was and is plagued by a catalog of the problems we discuss in our book. His family could not afford a private lawyer, so he was represented by appointed counsel who failed to properly investigate the case or call the witnesses who could have provided him an alibi; Mr. Johnson’s co-defendant was able to hire a good lawyer and was acquitted. The lead detective zeroed in on Mr. Johnson and his co-defendant when the only evidence against them was the word of a teenager who changed her story multiple times — particularly during breaks when the police turned off the tape recorder, presumably to coach her. The police ignored evidence that would have clearly shown that Mr. Johnson and his co-defendant could not have committed the crime in the way they alleged. The prosecution presented different, contradictory theories of the case at different trials. The prosecution fail to inform the defense that its key witness was paid. And today, the state attorney general is continuing to defend Mr. Johnson’s conviction and death sentence in the face of a clear constitutional violation, because apparently it’s more important to kill someone than to achieve justice.
Podcasts like this one tend to be maddening. That’s because the criminal legal system is maddening. But episode six, about the reward paid to star witness Violet Ellison, sets a new standard. To recap, the legal rule is that the prosecution must disclose to the defense any information that may tend to exculpate the defendant, including evidence that casts doubt on the credibility of a witness. Information that a witness is being paid for their testimony certainly qualifies.
Lying is a not uncommon feature of criminal trials. But there is still something epic about the lying in this case. Violet Ellison was paid $5,000 for her testimony; there’s no doubt about that now. The only reason Mr. Johnson’s lawyers knew about that in the first place was because an insider faxed them a copy of the court order authorizing that payment. That order was missing from the case file. (The judge refused to answer questions about why.) An investigator asked Ms. Ellison whether she had been paid. She lied until confronted with the document. A judge ordered the prosecution to turn over all documents related to the payment. They turned over several boxes of nothing, claiming that was all there was. Then the defense team got another tip from someone who used to work in the district attorney’s office, who said there was a separate, secret file for documents related to witness rewards. Only then — seventeen years after the trial — did the prosecution turn over the records; they claimed that the documents had been “misfiled.” The district attorney, whose signature was on the documents, also said that they had been misfiled — not that there was a system designed to keep witness rewards separate from case files, even though exactly the same thing had occurred in another case (involving a man who was wrongfully convicted and later exonerated). According to the records, Ms. Ellison came forward to provide evidence “pursuant to” the reward, which had been heavily advertised in the weeks after the original murder. The prosecution said the same thing at the evidentiary hearing on the issue. Ms. Ellison, however, said that she had not known about the reward. When Beth Shelburne asked the attorney general’s office for clarification, they repeated that Ms. Ellison had asked for the money, directly contradicting their star witness. When Shelburne confronted Ms. Ellison, she continued to insist that she knew nothing about the money until the district attorney, out of the blue, had told her he had $5,000 waiting for her.
Come on.
I gave a talk about The Fear of Too Much Justice yesterday at the UConn Law School, where I used to teach. The audience was mainly law school professors, all of whom already knew that the criminal legal system is fundamentally broken. So I talked about five examples from the book that even I found surprising. To take one, Roger Keith Coleman was on death row in Virginia. He claimed that his trial attorney had been ineffective. His claim was rejected in state court, but he could still appeal. However, his new attorney filed the notice of appeal three days late. So then he made the ineffectiveness claim in federal court. The federal courts, after much back and forth, refused to hear his claim because, according to the full Eleventh Circuit, it had been rejected in state court on “independent and adequate state law grounds” — namely, that his appeal missed the deadline. What about the fact that the failure was due to the ineffectiveness of his (second) lawyer? Well, at that stage of the proceedings he didn’t have a right to a lawyer, so he couldn’t complain about his lawyer’s mistakes.
In cases like that of Roger Keith Coleman, or Toforest Johnson, it’s clear that the legal system is not motivated by fairness or justice or even finding the actual murderer. It’s become a game that certain prosecutors and judges play to protect death sentences and make executions possible. In state court, a judge ruled that Violet Ellison was credible when she said she did had not been seeking a reward and that therefore there was no Brady violation. The United States Supreme Court refused to hear an appeal on that issue. In effect, the courts rewarded the district attorney’s office for lying about paying a witness and hiding the evidence for seventeen years. That’s how the game is played.
