Balko writes: "Over the next few years, six young black men and one black girl would be arrested for crimes associated with Hardy's murder. Four were charged. Two were tried - one was acquitted; one was convicted and sentenced to die. There was precious little evidence for any of the charges."
An Alabama Man Has Been on Death Row 21 Years. He Is Almost Certainly Innocent.
By Radley Balko, The Washington Post
07 September 19
The baffling conviction and death sentence of Toforest Johnson reveal a broken system
ust after midnight on July 19, 1995, Jefferson County, Ala., deputy William Hardy was moonlighting as a security guard for the Crown Sterling Suites hotel in Birmingham. Around 12:30 a.m., Hardy must have heard something in the parking lot that got his attention, because he stepped away from his post to investigate so quickly that he left a cigarette burning in an ashtray. Within seconds, a shot rang out, sending a bullet through Hardy’s hand, and then his mouth. A second bullet ensured his fate. Either between the shots or after them, Hardy staggered about 30 feet, leaving a trail of blood and teeth on the asphalt. Witnesses gave a variety of descriptions of the car that sped away from the scene, but most described it as a late model and light-colored.
Hardy, a black officer, was well-liked both in the sheriff’s department and in the community. He was 49 years old and had served for 23 years. He left behind a wife and two children. As is often the case when a police officer is killed, Hardy’s death shook the local community, and local law enforcement faced immediate and enormous pressure to find his killer. Police in Birmingham and the surrounding area pulled over countless vehicles on pretext stops that night. At the first preliminary hearing for the men initially arrested for Hardy’s murder, more than 750 law enforcement officers showed up for support, forcing the judge to move the hearing to a larger courtroom. Alabama’s governor would later announce a $10,000 reward for information leading to an arrest and conviction.
Over the next few years, six young black men and one black girl would be arrested for crimes associated with Hardy’s murder. Four were charged. Two were tried — one was acquitted; one was convicted and sentenced to die. There was precious little evidence for any of the charges.
This is a story about a wrongful conviction. It’s about witnesses who were rewarded for lies and threatened for telling the truth. It’s about overly aggressive law enforcement, a supine judiciary and almost comically ineffective representation, and how all of these things put a man on death row who nearly everyone now agrees is innocent — even the man who prosecuted him now doubts his guilt. It’s a story about the lives ruined along the way. And it’s about the murder of a much-liked deputy that, because of all of this, remains unsolved.
One July night
At the time William Hardy was killed, Toforest Johnson, then 22, and his friend Ardragus Ford, 21, were partying at a nightclub called Tee’s Place on the other side of Birmingham. Johnson’s appellate attorneys would later provide 10 witnesses who saw him at the club. And at almost precisely the moment Hardy died, phone records show Ford had called a girl he met a few weeks earlier, 15-year-old Yolanda Chambers. The two men arranged to pick up Chambers and another girl, Latanya Henderson, at around 2 a.m. The four planned to get a bite to eat before checking in to a hotel.
Around 4 a.m., a police officer approached the group in the parking lot of a Super 8 motel in the city of Homewood, about 5 miles south of Birmingham. The officer said he had been called about a “suspicious vehicle.” He patted down the four of them and searched the car. Police officials would later tell the four that they were questioned because law enforcement was on the lookout for Hardy’s killers, though the car they were in — a black 1971 Monte Carlo fitted to accommodate a wheelchair — didn’t fit the car most witnesses described fleeing the scene. The police found nothing suspicious and released Chambers, Ford and Henderson. Johnson, however, had an outstanding warrant for a traffic violation. He was arrested and taken to a city jail.
A few years ago, I wrote about the case of Montez Spradley, another Birmingham, Ala., man who had been convicted and sentenced to death. In both Spradley’s and Johnson’s cases, witnesses came forward with damning information in response to a reward. In both cases, it seems safe to say that a conviction wouldn’t have been possible without those witnesses. In both cases, the witnesses were paid, but the payments were never disclosed to the defense or the jury. In fact, in both cases, the judge signed off on said payments, yet neither judge bothered to notify defense counsel.
Coincidentally, the judges in the two cases are siblings. Gloria Bahakel, the judge in Spradley’s case, is the sister of the judge in Johnson’s case, Alfred Bahakel. The Bahakels also have another sibling, Jerry, who was a Jefferson County deputy and a colleague of Hardy at the time Hardy was killed — a connection that Johnson’s lawyers unsuccessfully argued was a conflict of interest. Jerry Bahakel was later fired from the Birmingham police department for using excessive force while arresting the daughter of the mayor of Birmingham. He later became a lawyer and also ran for judge, but lost.
In the investigations of both Johnson and Spradley, law enforcement officials threatened witnesses with incarceration and the loss of custody of their children if they didn’t tell authorities the story they wanted to hear. And both cases were prosecuted by the office of longtime Jefferson County District Attorney David Barber, who held that position for 24 years. So far, at least six people convicted of murder during Barber’s tenure have been exonerated, including four who at one time had been sentenced to die.
To the extent that there are differences between the two cases, they make Johnson’s prosecution even worse. He had deficient attorneys and an incompetent investigator. The state tried him and his friend using two mutually exclusive theories of the crime. And then there’s the biggest difference between Spradley and Johnson: Spradley was finally released from prison; Johnson is still on Alabama’s death row.
A star witness under pressure
Yolanda Chambers helped send one man to death row and almost sent another. She’s the reason Toforest Johnson was arrested, and she was the chief witness against his friend, Ardragus Ford. At one point, prosecutors themselves conceded that since William Hardy’s murder, Chambers had told more than 300 lies about who was involved and what she knew.
Hardy was a friend of the Chambers family, and the morning after the shooting, Chambers’s mother called to ask whether she had heard the news. The girl said she had, and told her mother that she “might know something” about what had happened. This likely referred to what police officers had told her and her friends the night before, but her mother seemed to have interpreted the answer to mean Chambers knew who committed the crime. The governor’s office would soon announce a $10,000 reward for the apprehension of Hardy’s killer. Chambers’s mother hired an attorney to help her collect the reward, and she told police that the girl had information about Hardy’s death.
Police investigators picked up Chambers and Latanya Henderson later that day. During intense questioning, both girls denied knowing anything about the murder. The stories they told police were nearly identical, and generally consistent with what we now know about the crime. But at the time, the police didn’t believe them. The investigating officers threatened the girls with criminal charges for lying, then let them go. Later that day, the two met up at a hair salon. According to court records filed by Johnson’s attorneys, Henderson vowed to her friend that she’d tell the truth, even it meant arrest; Chambers replied that she’d rather lie than go to jail.
Both girls appear to have stuck to their respective plans. Henderson continued to tell police she knew nothing about Hardy’s death, and that she and her friends were nowhere near the Crown Sterling Suites that night. Despite the fact that her story could be corroborated with phone records, she was charged with hindering prosecution and sent to a juvenile detention facility. She remained there for months.
Chambers was a different story. She first said Hardy had been killed by a man named “Mike,” whom she described as 6 feet tall and 200 pounds, with a gold tooth. Then she blamed a man named Quentin McClain. He was arrested but then released when Chambers retracted that story, too. She then named a man named Reggie Richardson. He, too, was detained and then released when Chambers changed her story a third time. There would be more stories, yet the police still believed Chambers was their best lead in the high-profile murder of one of their own.
Chambers, meanwhile, was undoubtedly scared. She was spending most nights on the streets of Birmingham immersed in a life of prostitution and illicit drugs. Now this 15-year-old was in the impossible position of going to prison unless she gave the police something useful, and having nothing useful to give them. As each of her stories fell apart, the police grew more desperate and squeezed her a little harder until she implicated someone new. “All of the evidence, including phone records and witnesses, clearly showed that she couldn’t have witnessed the Hardy murder,” says Richard Jaffe, a longtime Alabama criminal defense attorney who represented Ford. “Her accusations should have been painfully and obviously false.”
The routine between Chambers and police continued until she finally described a scenario that didn’t immediately clash with an alibi or contradict the known evidence. And that would be the story the police took to a grand jury.
In this version, Chambers said seven people were present at Hardy’s murder: herself, Henderson, Johnson and Ford, along with three other men (Omar Berry, Leon Colvin and Quintez Wilson). She initially claimed they had met up to carry out a drug deal; she’d later say it was to beat up a man who was staying at the hotel. In both versions, when Hardy showed up in the parking lot, Chambers said, Johnson panicked at the sight of a police officer, and shot him. Johnson then returned to Ford’s car with blood on his hands, and everyone fled. (Police never found blood or any other physical evidence linking Johnson to the crime scene.) Birmingham police arrested everyone Chambers named.
At a preliminary hearing just a couple of months later, Chambers changed her story again. This time, she said it wasn’t Johnson, but Berry and Wilson who killed Hardy. Four months later, the lead investigator for the sheriff’s department would tell a grand jury yet another story — that according to Chambers, it was Berry and Ford who fired at Hardy. He also told the grand jury that while she might have been dishonest in the past, “our investigation reveals there is no doubt that Yolanda Chambers is telling us the truth.”
But she wasn’t. Her story would change again. About a year later, Berry and Wilson passed polygraph tests. Around the same time, the police obtained surveillance video from the parking lot of the hotel. If Chambers had finally been telling the truth, the video should have shown Ardragus Ford’s car around the time of the murder. It didn’t. So Chambers altered her story again. She admitted to police that she had actually just met Berry and Wilson at a club a few nights earlier, and that they had nothing to do with the crime. Instead, she now claimed it was she, Henderson, Ford and Johnson who were in the parking lot, that Ford had parked out of view of the security cameras, and that Ford — and only Ford — shot and killed Hardy. Berry and Wilson were released from jail after being locked up for 15 months. Neither ever received an apology from law enforcement officials.
Undeterred, prosecutors finally charged Ford and Johnson with capital murder, making each eligible for the death penalty. Ford’s mother retained Jaffe, a renowned attorney who had represented multiple Alabamians facing the death penalty. Johnson’s family was poorer, and was assigned lawyers by the court.
In the weeks that followed, Jaffe’s investigators told him they had heard that Chambers had told friends she regretted implicating two innocent men for Hardy’s murder. Jaffe requested a hearing and questioned Chambers under oath. During that questioning, Chambers returned to her original story. She said she knew nothing about the crime, that she had never been at the hotel that night, and that neither had any of the people she was with. When Jaffe asked her why she had previously lied, she replied: “Because the pressure. They was telling me, you know, ‘Don’t you know you can go to jail for this?’ And that’s all I was thinking. That’s all I had put in my mind: Jail. I don’t want to go. So after they was putting all the pressure on me, I went on and said I was there … maybe if I go on and say I was there, maybe all the threats and everything will end.”
Later, Jaffe asked her why she had specifically lied to implicate Ford and Johnson. She replied, “Because, I mean, that’s what they wanted to hear, that Ardragus was the one who killed the police officer.”
Such an admission from the state’s star witness should have been a bombshell. Jaffe asked Judge Bahakel to find that the state had committed prosecutorial misconduct and that the charges against Ford be dropped. Bahakel declined.
Instead, Jefferson County would hold separate trials in Hardy’s murder: one for Ford and one for Johnson. In both cases, the state would seek the death penalty.
Two trials, two hung juries
Ardragus Ford’s trial came first, in November 1997. It’s worth noting that at several points during his interrogation and incarceration, Ford could have freed himself by implicating Toforest Johnson. In his 2012 book “Quest for Justice,” Jaffe writes that the police initially interrogated Ford for nine hours while Jaffe was tied up in a separate case. When he arrived at the police station, DA David Barber told Jaffe that he thought Ford was lying about knowing nothing about the shooting, but he also didn’t think Ford was the killer.
“He was there. We know that,” Jaffe recounts Barber telling him. “Go in there and see if you can talk some sense into him. Either you can leave with him as a witness or we are going to wheel him over to the Jefferson County Jail. It’s up to him.”
Jaffe got Barber to agree to complete immunity if Ford would implicate Johnson. But Ford wouldn’t do it. Jaffe then recounts what Ford told him when he approached his client with the immunity deal: “Look, Mr. Jaffe, Toforest and I are close, but not that close. I see where they won’t charge me if I say he did it. If that were the truth, I would say it in a heartbeat. I would not lie for him and put my family through all these changes, including money to pay you to represent me. But I am not lying for anybody, including the cops.”
Ford was arrested, jailed and charged with capital murder. Barber’s office would be seeking the death penalty. Jaffe writes in his book: “I have cross-examined many people who have lied to avoid a theft case. This young man faced the electric chair and refused to lie.”
As the trial began, as far as Ford and Jaffe knew, the only evidence against him was the testimony of Yolanda Chambers. “My opening statement took over an hour,” Jaffe says in a phone interview. “Theirs was only about 15 minutes. Usually a prosecutor would tell the jury what testimony they were about to hear. They couldn’t do that with Chambers because she was so unpredictable. They didn’t know for sure what she would say. None of us did.”
But the prosecution was also sitting on a surprise. After opening arguments, the state called a woman named Carla Bowen to the stand. Jaffe and his co-counsel were baffled. Prosecutors are supposed to give the defense a list of witnesses. Jaffe and his co-counsel had no idea who Bowen was. He objected. Prosecutors told the court that they had learned of Bowen only in the last few hours, and had no signed or recorded statements from her to give to the defense. That would later prove to be false, when Bowen revealed under questioning that law enforcement had previously questioned her in a recorded interview.
Bahakel granted a recess for the day so that Jaffe could review the recording. In it, according to Jaffe, Bowen said Ford had once come to her house with another teen, and the two watched an episode of “Matlock.” In the first part of the interview, she denied that Ford had ever said anything about Hardy’s death. But then the prosecutor mentioned Bowen’s children, and the possibility that she could lose them if she was charged for not coming forward sooner. That seemed to jog her memory. She quickly recalled that Ford had casually implicated himself in the shooting. Jaffe asked Bahakel to prevent Bowen from testifying. He refused.
The main event at Ford’s trial was Yolanda Chambers. She told the jury that she, Johnson, Ford and Latanya Henderson were in the parking lot of the hotel, and that Ford fired the fatal shots at Hardy. Prosecutors admitted to the jury that Chambers had lied in the past, but vouched for her integrity on the witness stand. “She didn’t ask for this role,” said deputy district attorney Jeff Wallace, “but she came in here and told you the truth.” And she told the truth, he said, “Because she she’s sitting there looking at Bill Hardy’s family when she tells you what she saw that night.” Chambers was telling the truth, prosecutors insisted. But they had also insisted she was telling the truth when they previously presented the media, the grand jury and the court with theories of the crime that were wholly inconsistent with the theory they were arguing now. And soon, in Johnson’s trial, they’d argue a completely different theory.
In spite of Wallace’s efforts, the state’s case against Ford just wasn’t very strong. The jury hung, with a 10-2 vote in favor of acquittal.
The following month, jury selection began for Johnson’s trial. The case against Johnson was nearly as weak as the case against Ford. And Chambers’s most recent story — the one she had just given in court, under oath — was that Ford killed Hardy, with no help from anyone.
But after Ford’s trial, prosecutors opted to use a piece of information against Johnson that they’d had from nearly the beginning. In August 1995, just a couple weeks after the shooting, a woman named Violet Ellison told police that she had heard Johnson confess to Hardy’s murder. At the time, Ellison’s daughter was dating an inmate at the county jail. When he needed to make phone calls, the boyfriend would call Ellison’s daughter from the jail phone, and she would then contact other parties through three-way calling. He would only be required to pay for one call. She began doing this for other inmates as well.
According to Ellison, in August 1995 she picked up her phone after her daughter had arranged one of these calls and listened in on the conversation. She said she heard one of the parties on the line identify himself as “Toforest.” She said that man then told the other party that he “shot the f----r in the head,” because the deputy was “messing in my s--t.” According to Ellison, the man also said that Quintez Wilson fired the other shot.
The confession Ellison claimed to have heard didn’t jibe with evidence showing that the bullets found at the crime scene were fired from the same gun. It also didn’t jibe with either of the state’s two competing theories of the crime — that either Ford or Johnson shot Hardy, with no help from the other. Odder still, Ellison first came forward with her allegation in August 1995, yet between then and Johnson’s December 1997 trial, prosecutors advanced multiple other theories of the crime that directly contradicted the alleged confession. For example, in January 1996, five months after Ellison came forward, lead police investigator Anthony Richardson told a grand jury that the police believed Ford and Omar Berry fired the shots. Nine months later, the state dropped all charges against both Berry and Wilson.
There are other good reasons to doubt Ellison’s claims. She knew Hardy and was a friend of his family. She was facing some financial hardship right at the time when both the state and the sheriff’s offices were offering well-publicized $10,000 rewards. The Alabama governor’s office announced the reward on Aug. 2, 1995; Ellison claims the incriminating phone call happened the very next day.
It’s also possible that Ellison was telling the truth but had been duped. Other inmates at the time later told Johnson’s appellate attorneys that one inmate had a habit of imitating his fellow inmates when he called women on the jail phone. According to them, Johnson was one of his go-to imitations. Ellison had never met or spoken to Johnson, so she wouldn’t have known the sound of his voice.
In 2003, Johnson’s appellate attorneys learned that the state of Alabama paid Ellison $5,000 in 2001 for her assistance to the prosecution. It isn’t clear why it took so long for her to receive payment, but in other cases (such as Montez Spradley’s), such rewards have been contingent on the state winning a conviction that holds up on direct appeal.
But the state still hadn’t turned over the check itself, or any records associated with it. In January, more than 20 years after Johnson was tried, the state finally turned over a copy of the check, as well as a form signed by Judge Bahakel authorizing the payment, emails between state officials about the reward, and an August 2001 letter from DA David Barber to the Alabama governor’s office requesting Ellison’s reward. Prosecutors said these documents had been “misfiled,” and only recently discovered.
In his letter to the governor’s office, Barber wrote that Ellison came forward "pursuant to the public offer of a reward.” That’s significant, because at trial prosecutors summarizing Ellison’s testimony told the jury that she had come forward solely because of “her conscience” and so that she “can sleep at night.” At a hearing this year, Ellison testified that contrary to Barber’s letter, she knew nothing about the reward when she came forward, or even during the three times she testified (she testified at Johnson’s two trials, as well as at a hearing). She claimed she learned of the money only in August 2001.
Of course, it’s possible that Ellison came forward both because she wanted to catch a killer and she wanted the reward. But the jury never heard about there being a reward, or about the conditions that would need to be met for Ellison to claim it. Johnson’s post-conviction attorneys would later discover that Ellison also told police she’d overheard another conversation several days earlier in which a man identifying himself as Johnson denied knowing anything about the murder. The defense and jury never heard about that either.
Ellison’s testimony was the only evidence against Johnson. As with Ford, there was no physical evidence linking him to the crime. The girl who got Johnson arrested, Yolanda Chambers, hadn’t testified against him. He hadn’t been identified by any other eyewitnesses. And the police hadn’t connected him to the bullets fired at Hardy. Nevertheless, as with Ford, the jury in Johnson’s trial was unable to reach a verdict. At the time the mistrial was declared, the jury stood at 10-2 to convict.
The state moved to try both men again. For the second round, Johnson would be tried first, in August 1998. Once again, Ellison and her daughter would testify.
Tunnel vision
From the start, the investigation into William Hardy’s murder was a morass of ambiguous and conflicting evidence and statements from witnesses. Even setting aside Yolanda Chambers’s ongoing lies, a simple assessment of the various witnesses’ motivations should have indicated to law enforcement that they were barreling down the wrong path. Chambers started telling stories that didn’t check out only after she told police she knew nothing about the crime, and was threatened with jail. Carla Bowen only implicated Ardragus Ford once she was threatened with the loss of her children. Both of them had strong incentives to provide incriminating information. On the other side, you have the witnesses who saw Ford and Toforest Johnson at the nightclub, none of whom had much to gain for their testimony. And then there’s Ford and Latanya Henderson, both of whom stuck to their stories in spite of threats from law enforcement.
The investigators appear to have been afflicted with tunnel vision, a form of cognitive bias that is common in wrongful convictions and especially in high-profile cases. Tunnel vision, writes Keith Findley of the University of Wisconsin Law School and the Wisconsin Innocence Project, “leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion.” Instead of following leads until the evidence points to a perpetrator — a process that can be time-consuming — tunnel-visioned investigators start with a suspect, then look for evidence to confirm their suspicions. Exonerating evidence and leads pointing to alternate suspects tend to be ignored.
With Hardy’s murder, investigators seemed certain that they would find their killer within Chambers’s social circle. So they pressed her for information, over and over, all the while ignoring the mounting evidence that she wasn’t a reliable witness and had no connection to the crime. As time went on and the trail grew colder, it would become increasingly difficult for any law enforcement officials to admit — to the public or to themselves — that they had botched the investigation.
Instead, they would proceed with bizarrely contradictory theories of the crime based on what little evidence they had. Of all the myriad ways Alabama’s system failed Ford, Johnson and the family of William Hardy, that might be the most jarring. Prosecutors moved seamlessly between inherently contradictory theories. Just a month after telling a jury that Ford shot Hardy, deputy district attorney Jeff Wallace assured a new jury that Johnson pulled the trigger. (When I reached Wallace by phone, he said he would not talk about a pending case.) Just a month after Wallace matter of factly told a jury that the forensic evidence unambiguously demonstrated that Hardy was killed by a man firing up from a wheelchair, the state solicited testimony from the medical examiner that the bullet trajectory was inconclusive about the position of the shooter.
Odder still, just a month before Ford’s trial, Wallace filed a motion to consolidate the charges in the two cases and to try both men at the same time. It’s unclear exactly how that would have gone down. The main reason Wallace got away with his competing theories is that he had two separate juries — he could vouch for Chambers’s credibility to one jury, while describing her as a liar to another. He couldn’t do both in front of the same jury. But if prosecutors weren’t planning to argue both theories, it means that just a month before the first trial, they had yet some other theory at the ready.
At a hearing on the motion to consolidate, there was another curious moment, one that again suggests that just as prosecutors were set to go trial, their theory of the crime remained fungible. Attorneys for both Johnson and Ford were at the hearing, and both opposed consolidation. At one point, Johnson’s attorney told the judge that Violet Ellison told him that she heard the voice on the phone say “We shot him because he got in our s--t,” not “I.”
Wallace responded, “My recollection is that he used the word ‘I.' But, nonetheless, that can be changed to the word ‘I.’” Was Wallace suggesting in open court that they alter a witness statement to fit a more convenient theory of the crime? Richard Jaffe certainly seemed to think this is what happened. He responded, “That’s unbelievable. He’s going to — ” At that point, according to the transcript, the judge cut Jaffe off.
In the end, Bahakel denied Wallace’s motion. There would be two more trials. And the state would continue to insist on the impossible. First they would argue that William Hardy was killed by Toforest Johson (and possibly Quintez Wilson) but not by Ardragus Ford. Then they would argue he was killed by Ford, but not Johnson. They never posited at any trial that both men killed Hardy, perhaps by each firing a bullet. They couldn’t, because that was one of the few scenarios to which no one, not even Yolanda Chambers, was willing to testify.
Conflicting theories
At Johnson’s second trial, his own attorneys called Yolanda Chambers to testify. It was a risky move. On the one hand, Chambers was the reason their client had been arrested in the first place, yet she had just testified in another case that someone else had committed the crime. But putting an untrustworthy witness on the stand isn’t the best way to win over a jury. Wallace pounced. In his closing argument, he called Chambers a “liar,” and scolded the defense for calling such an untrustworthy witness. “Never once, not one time, did we in our case put before you anything said before Yolanda Chambers,” he said, just months after he’d done exactly that — albeit in front of a different jury. And a few months later, before yet another jury, he’d do exactly that again.“ State didn’t call her, the Defense did. I want you to remember that.”
Putting Chambers on the witness stand also contradicted the strongest evidence exonerating Johnson — the two witnesses who put him at Tee’s Place. (His appellate attorneys would later find eight more.) Chambers put Johnson at the crime scene but said he didn’t commit the murder. Admitting that he was knowingly present for a drug deal, or possibly an assault, likely hurt him with members of the jury. And presenting contradictory stories likely only confused them.
This time, the jury convicted. About a half-hour later, they voted 10-2 in favor of execution. Judge Bahakel then sentenced Johnson to die.
Ardragus Ford’s second trial was in June 1999. Again, the state’s case rested almost entirely on Chambers, the very person Jeff Wallace had previously told jurors was a liar. The defense cross-examined Chambers meticulously, forcing her to admit to each of her lies, one at a time. It eventually go to be too much for prosecutors, who ended the misery stipulating that Chambers had lied about the crime to law enforcement at least 300 times. Ford was acquitted. His attorneys didn’t even bother putting on a defense.
It’s worth emphasizing again what had just happened: The state of Alabama attempted to get a death sentence for a man based on a theory of a murder that directly contradicted a different theory of the same murder that the same state — indeed, the same prosecutor — had already used to put a different man on death row.
The U.S. Supreme Court has never ruled on whether prosecutors can argue conflicting theories of the same crime at separate trials. But while prosecutors aren’t required to investigate the veracity of every piece of evidence they present, they also can’t present evidence they know to be false. When a prosecutor argues directly contradictory theories at separate trials, he certainly knows that he presented false evidence in one of those trials, even if he might not know which one is false.
In 2005, the court did hear oral arguments in an Ohio case in which the state presented contradictory theories about whether a defendant or his accomplice had fired the fatal shot during an armed robbery that left a woman dead and her husband wounded. But the state’s conflicting theory only came up during sentencing, not during the guilt phase of the defendant’s trial. The court sent the case back to state court without addressing the conflicting-theories issue. (During oral arguments, Justice David Souter suggested hypothetically that conflicting theories could violate due process. Justice Antonin Scalia seemed to scoff at the suggestion.)
In a 2017 article for the Marshall Project, journalist Ken Armstrong found just under 50 cases in which the defense argued in court fillings that the state had argued conflicting theories of a murder. In 29 such cases the defendant was sentenced to die, and in seven the accused has since been executed. In all but a couple cases, the convictions were allowed to stand. In a 1999 article for the Fordham Law Review, Michael Q. English did find that a few courts have allowed defense attorneys to introduce a prosecutor’s conflicting statements about a crime from a previous trial. That would at least inform the jury that the state was advancing contradictory theories. But that approach would be available only to the defendant who was tried second. Whoever went first would be out of luck.
The main problem is that appellate courts tend to look at cases in isolation. They will rarely even consider facts that aren’t in the trial record, so it’s a tall order to ask that they consider how the state’s actions in one case might affect another. This is exactly the approach the Alabama Criminal Court of Appeals took when Johnson tried to argue that the contradictory theories violated his right to due process. “There is no evidence in the record before this Court that the prosecutor argued a different theory of the murder at Ford’s trial,” the court wrote in a unanimous opinion denying Johnson’s appeal. “In fact, the record in Johnson’s case does not even reveal that Ford was ever tried for the murder of Deputy Hardy, much less that the prosecutor tried Ford on the theory that Ford was the triggerman.” Of course, it would have been impossible for Johnson’s counsel to have mentioned anything the prosecution said in Ford’s second trial, because when Johnson was convicted, Ford’s second trial hadn’t yet happened.
At the very least, seeking the death penalty for two men by claiming the evidence supports exclusive theories of the crime would seem to violate a prosecutor’s professional ethics. “While the practice may be considered constitutional, it is extremely difficult to square with the understanding that a prosecutor’s primary obligation is to do justice, not merely win cases,” says Carissa Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law. “Any prosecutor who pursues this path should face significant scrutiny and should have to publicly explain and defend the decision.”
A deficient defense
Ardragus Ford’s family was able to find the money to hire Richard Jaffe, an attorney with extensive experience trying death penalty cases. Toforest Johnson was assigned a court-appointed attorney. There’s no evidence that the attorney didn’t give the case his full attention, but there’s also no question that he made mistakes. He called Yolanda Chambers to the stand. Some of his witnesses were unprepared or underprepared. He also proposed conflicting stories to the jury.
Johnson’s attorney also admitted in a court filing that he lacked the necessary experience for a capital case. “Defendant’s attorney does not have the expertise in criminal investigation work to investigate the facts and interview the witnesses surrounding the alleged crime with which the Defendant is charged,” he wrote. “The Defendant’s attorney has no formal training in criminal investigation, nor do they have the capabilities and time to interview all the potential witnesses and conduct all the investigation necessary and essential to provide the Defendant with an adequate defense.”
That admission came in a request for the court to provide funding to hire a private investigator. The trial court agreed but was stingy with the funds. With what they were given, Johnson’s legal team could only afford to hire an investigator named Steve Saxon. Johnson’s current lawyers describe him as “a brain-damaged, alcoholic, racist, suicidal, homeless man ... who had already been fired from at least one capital case for incompetence, had been operating without a business license for at least five years, and who could barely manage his own day-to-day affairs.” (Saxon has since died.)
During the time he had been hired to investigate Johnson’s case, Saxon admitted to drinking a quarter gallon of whiskey per day. Johnson had given Saxon a list of witnesses who would testify on his behalf; Saxon never spoke with any of them. (Saxon at one point admitted that he refused to interview witnesses in “dangerous” neighborhoods.) Saxon also didn’t manage to find the 10 witnesses who have since said they saw Johnson at Tee’s Place on the night of the killing. He failed to turn up the mitigating factors around Violet Ellison’s testimony, or an eyewitness who said he saw a 6-foot man hovering over Hardy’s body immediately after the shooting. (Johnson is 5-foot-5.)
After Johnson’s conviction, he was still destitute and needed an attorney to file his appeal. Despite that his was a death penalty case, and that there was ample reason to question his conviction, the court assigned a man named Joe Morgan Jr. to the case. Shortly after he filed and argued Johnson’s appeal, the Alabama Supreme Court suspended Morgan’s law license for two years. He had just pleaded guilty to ethics violations in nine separate cases for neglecting his clients. One state Supreme Court justice argued that the suspension was too light, writing that Morgan “exhibited an attitude of indifference and disrespect to his clients and to his profession,” and that “Morgan’s actions and inactions justify requiring a lengthier rehabilitation before he resumes the practice of law.”
“My client’s [Ardragus Ford] family had some limited financial resources,” Jaffe says. “Toforest Johnson’s family did not. His lawyers were appointed, and his family could not bond him out of jail. You can see how all of that affected his defense. His investigator had serious problems, including alcoholism, that clearly hampered his investigation. Of all the people arrested for Hardy’s murder, he was the only one convicted. To this day, I still do not understand why his attorneys called Yolanda Chambers to testify.”
Today, Johnson is represented by the Southern Center for Human Rights and the Death Penalty Clinic at the University of California, Berkeley School of Law, two reputable groups with experienced, well-trained death penalty attorneys. He is currently awaiting the judge’s ruling on the issue of Ellison and the $5,000 check. If he loses his motion, he will have exhausted his state appeals and will begin the process of asking a federal court to review his case — a process that is heavily deferential to the state courts.
The evidence against Johnson is flimsy, particularly for a death penalty case. The fact that he’s still on death row demonstrates the folly of the notion that appellate courts are adequately ensuring the fairness of criminal trials. Johnson’s case has been heavily litigated at every level of Alabama’s criminal court system, and yet so far the multitude of problems with how his case was investigated, charged and tried hasn’t been enough to win him a new trial. At this point even Jeff Wallace — the man who prosecuted Johnson — has told Johnson’s attorneys under oath that he has doubts about their client’s guilt. When reached by phone, Wallace said he wouldn’t comment on a pending case. But he did offer his assessment of Johnson’s conviction in a 2014 deposition. “I don’t think the State’s case was very strong,” he said, “because it depended on the testimony of Violet Ellison, in my opinion.”
In 2018, Birmingham elected its first black district attorney. Danny Carr, who began his career as a prosecutor in 2000, ran on a platform of reform. Carr doesn’t have the authority to drop the charges against Johnson or to retry him — the case is now in the hands of Alabama Attorney General Steve Marshall. But if he were to speak out on the case, it could influence how Marshall’s office proceeds.
One of the most striking things about this story is the mundanity of the violence in the lives of people like Johnson and Ford. At age 17, Johnson himself took a bullet to the chest during a drive-by shooting. Ford was paralyzed from the waist down after taking a bullet while protecting his cousin from a shooter. (Even Carr has been touched by violence — his brother was murdered in 2001.)
After his 15-month incarceration, Quintez Wilson accumulated a lengthy record of drug crimes and assaults before he himself was gunned down in 2008. Latanya Henderson told the truth from the start, and for that she was arrested and spent nearly a year in juvenile detention. Chambers told the truth in her first interview, but was browbeaten and threatened into implicating innocent people. She died of unknown causes in 1999, at just 20 years old. Johnson, of course, still sits on Alabama’s death row.
There’s one other group of people victimized by the state’s ineptitude in this case: William Hardy’s family. If Johnson is innocent — and nearly everyone originally associated with his case now believes he is — then Hardy’s killer was never caught, and whatever solace Hardy’s family might have been given by Johnson’s conviction will need to be unsettled. Whatever pain the family has managed to bury might be resurrected.
The perverse thing is that the longer a case like this drags out, the more tempting it becomes for state officials to follow the path laid out by Alabama’s courts: Ignore the evidence, execute Johnson and pretend he was treated fairly. Pretend that the lives wrecked by the investigation weren’t for naught, and that the man who actually killed Hardy didn’t slip the grip of the law.
That isn’t justice; it’s an illusion. Unfortunately, buying into the illusion is a lot easier than reckoning with reality. And the reality here is that any system that could allow Johnson to be convicted, sentenced to die and remain on death row for this long, on this dearth of evidence, is a system broken to its core.
t is understandable that people laugh at this. There is an inherent hilarity in 
he same perennially warm waters that attract tourists to the Bahamas also helped sustain one of the most destructive storms ever seen in the region.
hen I talk to Democrats about the presidential primary, I hear the same thing over and over: “I’ll vote for whoever I think can beat Donald Trump.”
