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Radley Balko is an invaluable national resource as a long form journalist who does a spectacular job covering criminal justice issues in general and the problem of prosecutorial powerand misconduct specifically. Late last week, Radley wrote a very detailed, very important piece about Alabama death row prisoner Toforest Johnson, a man whose highly questionable Jefferson County death sentence has so many of the systemic problems in capital cases, it may be taught in law schools one day.  Before that happens, we’re hoping the new DA in Jefferson County, Danny Carr, will advocate for justice in this troubling case.  

There have been other , also terrific pieces on the case, but Balko’s is a must-read. His deep dive leaves little doubt that Mr. Johnson’s death sentence is predicated on profoundly unreliable witnesses who were pressured and paid cash, a jury without all the information they should have had about the State’s witnesses, a DA’s office determined to win a death sentence in retaliation for the death of a cop, and other unfair elements. Tragically common and especially vivid in Mr. Johnson’s case is the impact of family resources on criminal justice outcomes. For the senseless killing of Birmingham-area policeman William Hardy, moonlighting as a hotel security guard, the State pursued death in two equally weak cases. Ardragus Ford’s family scraped together enough money to hire an experienced capital litigator and saw their innocent son walk away from the charge. Toforest Johnson’s court-appointed defender and his disaster of an investigator did a lesser job of advocacy and Mr. Johnson got death.

Particularly well-handled in Balko’s piece is the thorny question of the legality of the prosecutorial strategy of advancing two contradictory (in Johnson’s case, exclusive) versions of the crime in two cases. Key witness Yolanda Chambers was only 15 years old on the night of the crime, and was a homeless prostitute trying to avoid jail by the time of the trials (two initial mistrials led to retrials). ADA Jeff Wallace argued in Ford’s first trial that Chambers proved he was the sole shooter, but when Johnson’s attorneys called her to argue the same thing at his second trial, the State called her a “liar” and told the jury it could disregard her testimony. ADA Jeff Wallace told the jury, “never once, not one time, did we in our case put before you anything said before Yolanda Chambers” and directly referred to her as a “liar.” Ms. Chambers had, in fact, lied many times about the cases. Mr. Johnson’s jury found her problematic and his attorney’s poor decision to call her in his defense contributed to the guilty verdict and death sentence.  

After securing the death sentence against Mr. Johnson, the same ADA turned around and called Ms. Chambers against Mr. Ford. As Balko relates: 

“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.”

Wallace had presented two juries with two mutually exclusive, single-shooter theories of the death of Deputy Hardy. To substantiate one he called Chambers, signifying his office’s belief she was credible; to substantiate the other, he called her a liar. 

Carissa Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law, contributes a quote about the practice of  prosecutors offering exclusive theories:  “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…. Any prosecutor who pursues this path should face significant scrutiny and should have to publicly explain and defend the decision.” Unfortunately, as we have seen in case after case, scrutiny and public accountability for prosecutors is vanishingly rare. 

The shall-we-say “flexibility” of the prosecutor in Mr. Johnson’s case is shocking even to a website devoted to writing about issues of prosecutorial accountability. At one hearing, the ADA appears to have offered to change witness testimony. 

“At one point, Johnson’s attorney told the judge that [State witness] 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? [Ford’s attorney] 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.”

Even though Balko’s piece grimly notes the incentives for state officials to let older cases “play out,” it’s inconceivable that Alabama would risk the execution of an innocent man based on a clearly very unreliable legal process.  

Hopefully Danny Carr will follow the request of Birmingham’s religious leaders and support a new trial for Toforest Johnson, which could help move Alabama Attorney General Steve Marshall to push for a new trial and sentencing. We’ll be following the case. 

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