DOCUMENT 305

ELECTRONICALLY FILED
12/20/2019 4:24 PM
01-CC-1996-000386.60
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
JACQUELINE ANDERSON SMITH, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
TENTH JUDICIAL CIRCUIT
CRIMINAL DIVISION

TOFOREST O. JOHNSON, )
Petitioner, )
)
v. ) No. CC-96-386.60
)
STATE OF ALABAMA, )
Respondent. )
_______________________________)

PETITIONER’S POST-HEARING REPLY BRIEF

Ty Alper, #ALP-002
U.C. Berkeley School of Law
Death Penalty Clinic
Berkeley, CA 94720-7200
(510) 643-7849
talper@law.berkeley.edu

Kathryn Miller, #MIL-163

Cardozo Law School
55 Fifth Avenue
New York, NY 10003
(510) 847-3538
kathryn.miller@yu.edu

Patrick Mulvaney, #MUL-027

Southern Center for Human Rights
60 Walton Street, NW
Atlanta, GA 30303
(404) 688-1202
pmulvaney@schr.org

Counsel for Toforest Johnson

Date: December 20, 2019

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................3

I. MR. JOHNSON’S EVIDENCE PROVES BY A PREPONDERANCE

THAT THE STATE SUPPRESSED INFORMATION RELATED TO
ITS KEY WITNESS’S FINANCIAL MOTIVATION TO TESTIFY ........... 3

II. MR. JOHNSON’S BRADY CLAIM IS NOT PROCEDURALLY

BARRED .......................................................................................................11

CERTIFICATE OF SERVICE ................................................................................14

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TABLE OF AUTHORITIES

Federal Cases
Banks v. Dretke, 540 U.S. 668 (2004) .............................................................. 12, 13
Bracy v. Gramley, 520 U.S. 899 (1997) ..................................................................12
Brady v. Maryland, 373 U.S. 83 (1963) .......................................................... passim
Washington v. Smith, 219 F.3d 620 (7th Cir. 2000) .................................................8
State Cases
Baker v. State, 87 So. 3d 587 (Ala. Crim. App. 2009) ..............................................5
Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985) ...................................................4
Johnson v. State, No. CR-05-1805, 2007 WL 2812234
(Ala. Crim. App. Sept. 28, 2007) .........................................................................11
Johnson v. State, No. CR-05-1805, 2018 WL 1980778
(Ala. Crim. App. Apr. 27, 2018) ...........................................................................2
Kuenzel v. State, 204 So. 3d 910 (Ala. Crim. App. 2015) ........................................4
Rules
Ala. R. Evid. 801(d)(2)(A) .........................................................................................5
Ala. R. Crim. P. 32.3 ................................................................................................11
Other Authorities
Beth Shelburne, Money for Justice?, WBRC (Sept. 11, 2019) ................................. 8

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INTRODUCTION

The State now claims that it “has never disputed that years after Johnson’s

conviction Ms. [Violet] Ellison received reward money for her testimony at his

1998 trial.” State’s Br. at 10. 1 However, the State went to extraordinary lengths in

2001 to ensure that Mr. Johnson did not know about the $5,000 payment to Ms.

Ellison, its star witness. It generated paperwork about Ms. Ellison’s qualifications

for the reward money without contacting Mr. Johnson or his lawyers. Pet’r Ex. 17

at 9–10, 13–14. It engaged in ex parte communications with a sitting judge to

obtain authorization for the payment to Ms. Ellison, without informing Mr.

Johnson or his lawyers. Pet’r Ex. 17 at 11–12. It issued a check to Ms. Ellison

care of the District Attorney—again, without notifying Mr. Johnson or his lawyers.

Pet’r Ex. 17 at 3.

Then, years later, when this Court ordered the State to produce any and all

paperwork related to the provision of reward money to Ms. Ellison, the State

repeatedly insisted that none existed. See, e.g., Transcript of October 9, 2018,

Status Hearing at 8 (counsel for the State representing that “my review of the DA’s

file, there were a couple of—there were a few documents concerning the reward.

1
“State’s Br.” refers to the State’s brief filed on November 18, 2019. All other citations follow
the citation conventions in Petitioner’s Post-Hearing Brief filed on October 15, 2019.

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. . . Nothing about anyone applying for a reward or being granted a reward”). It

was not until the District Attorney’s former office manager revealed that

documentary proof resided in the prosecution’s files that the State finally disclosed

the reward evidence, explaining that the District Attorney’s office claimed it had

been “misfiled.” Pet’r Ex. 17 at 1; Pet’r Mot. for Renewed Disc., Dec. 20, 2018, at

2–3.

Now confronted with its own documents, the State claims that these

documents do not mean what they say. Then–District Attorney David Barber

admitted in writing that Ms. Ellison gave information in this case pursuant to a

cash reward offer, which is precisely the factual question the Court of Criminal

Appeals remanded for this Court to determine. Johnson v. State, No. CR-05-1805,

2018 WL 1980778, at *2 (Ala. Crim. App. Apr. 27, 2018). The State now argues

an alternative interpretation of the plain language of Mr. Barber’s admission. The

State also claims that the letter does not establish when the State became aware of

Ms. Ellison’s motivations, even though the State does not dispute that she had no

discussions with State officials between the time of her testimony and the time she

signed the reward paperwork. Finally, the State contends that Ms. Ellison’s own

testimony at the 2019 hearing—testimony that belies common sense and that the

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Office of the Attorney General has since publicly contradicted—undermines the

District Attorney’s contemporaneous written admission.

The State does not contest the favorability or materiality of the reward

information, nor does it contest its failure to disclose this information to Mr.

Johnson’s attorneys prior to trial. It argues only that Mr. Johnson has not proven

suppression. The State is wrong. Put simply, the evidence indicates that Mr.

Barber meant what he wrote. Mr. Johnson has met his burden of proving that it is

more likely than not that the State was aware of Ms. Ellison’s financial motivation

at the time of trial. Accordingly, this Court should order a new trial.

ARGUMENT

I. MR. JOHNSON’S EVIDENCE PROVES BY A PREPONDERANCE

THAT THE STATE SUPPRESSED INFORMATION RELATED TO
ITS KEY WITNESS’S FINANCIAL MOTIVATION TO TESTIFY.

Because the State does not contest favorability or materiality, the only

question for this Court is whether Mr. Johnson has established that it is more likely

than not that suppression occurred. In its brief, the State advances four arguments

to support its position on suppression. Each argument falls short.

First, the State argues that then–District Attorney Barber’s admission does

not prove that the State suppressed information about Ms. Ellison’s motivation

because the phrase “pursuant to” in the letter is mere “legalese.” State’s Br. at 8.

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The State’s attempt to redefine “pursuant to” is unavailing in light of the remand

order from the Court of Criminal Appeals (CCA). As this Court noted during the

June 2019 hearing, the CCA remanded on a “very narrow question”: to give Mr.

Johnson an opportunity to prove the Brady allegation in his Third Amended

Petition. H. 6.

By definition, the CCA’s remand for an evidentiary hearing means that the

appellate court has already determined that, if Mr. Johnson can prove what he

alleged in his petition, he is entitled to relief. See Kuenzel v. State, 204 So. 3d

910, 914 (Ala. Crim. App. 2015) (“A Rule 32 petitioner is entitled to an

evidentiary hearing on a claim in a postconviction petition only if the claim is

‘meritorious on its face.’”) (quoting Ex parte Boatwright, 471 So. 2d 1257, 1258

(Ala. 1985)). In his petition, Mr. Johnson alleged that Ms. Ellison had come

forward “pursuant to the public offer of a reward” and that the State had withheld

this information. C. 1171. Mr. Barber’s admission—that Ms. Ellison gave

information “pursuant to the public offer of a reward”—is identical to what Mr.

Johnson alleged in his petition. Pet’r Ex. 17 at 9. The State’s alternative

definitions of “pursuant to” do not trump the language in the CCA’s remand order,

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nor do they relieve this Court of its responsibility to determine whether Mr.

Johnson has proven the specific allegations made in his petition. 2

Second, the State suggests that Mr. Johnson needed to call Mr. Barber as a

witness to meet his burden. State’s Br. at 8. On the contrary, Mr. Barber’s letter is

a statement by a party opponent, and its admission obviated any need for Mr.

Johnson to call him to testify. Ala. R. Evid. 801(d)(2)(A); see Baker v. State, 87

So. 3d 587, 602 (Ala. Crim. App. 2009) (treating letter appellant wrote to the

victim’s mother offering to plead guilty as an admissible admission of guilt). The

letter speaks for itself. If the State had believed Mr. Barber’s testimony would

contradict the plain meaning of his letter, it could have called him as a witness. It

chose not to do so.

Third, the State maintains that Ms. Ellison’s testimony denying knowledge

of the reward until 2001 was “unrefuted.” State’s Br. at 10. However, the

testimony was refuted by Mr. Barber’s 2001 written admission. Moreover, the

testimony was refuted by the State’s own opening statement, as well as the Office

of the Attorney General’s own statement to the media following the hearing. Pet’r

Br. at 11–14. Far from making the State’s case, Ms. Ellison’s testimony—the only

2
Moreover, email communications predating Mr. Barber’s letter establish that State officials
(including multiple lawyers) carefully crafted the language in the letter to establish Ms. Ellison’s
eligibility for a portion of publicly offered reward money in this case. Pet’r Ex. 17 at 16–17.

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evidence the State offered in rebuttal—is not credible and therefore is insufficient

to undermine the evidence establishing that Ms. Ellison was aware of the reward

when she testified at Mr. Johnson’s trial.

While the State is correct in asserting that the relevant focus of the Brady

analysis is when Ms. Ellison learned of the reward, this does not render how she

learned of the reward irrelevant, especially when the State presents one version of

events and its only witness presents a different version. Because the State’s

rebuttal relies entirely on Ms. Ellison’s June 2019 testimony, Ms. Ellison’s

credibility is critical. When she learned of the reward, how she learned of it, and

what she did with that information are all questions that this Court must resolve

before ruling in this case. As counsel for the State noted at the conclusion of the

hearing, Ms. Ellison’s “credibility in this hearing is very important, just like her

credibility in 1998 at trial was very important.” H. 194.

The contradiction regarding how Ms. Ellison learned about the reward

significantly undermines her credibility. Ms. Ellison’s most recent story is

incredible on its face and does not comport with the commonsense understanding

of how reward funds are distributed. According to her sworn testimony, it was

officials from the District Attorney’s Office who, years after the trial, for no

apparent reason and without any previous conversations about the existence of a

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reward, contacted her to find out if she was interested in collecting thousands of

dollars of State funds. H. 57–58. The Court should reject that testimony as

incredible.

If the Court instead credits the State’s other account—that it was Ms. Ellison

who first inquired about the reward—then the Court must find that Ms. Ellison’s

testimony at the June hearing was false, because she was adamant that was not how

she became aware of the reward.3 Either way, if the Court discredits Ms. Ellison’s

testimony about when and how she became aware of the reward, surely her

testimony regarding her knowledge of the reward at the time of the trial cannot

serve to undermine the admission in Mr. Barber’s letter.

The State acknowledges that it contradicted Ms. Ellison’s testimony in its

opening statement, but admits only that the State’s representations “did not track

Ms. Ellison’s hearing testimony in every detail.” State’s Br. at 11–12. The State’s

argument that the inconsistencies concern only the “details” belies the record. In

its opening, the State proffered that Ms. Ellison had initiated the reward payment

process in 2001. The State specifically stated that Ms. Ellison had initiated the

3
Ms. Ellison testified at the hearing that she “didn’t know anything about a reward until
approximately three years later . . . when I got a call from the district attorney’s office . . . asking
me to come in and sign some papers.” H. 57–58. She continued, “That was the first I had heard
about it. And when they called me, they just said I needed to come in and sign some release
forms.” H. 62.

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process after she had spoken to an individual about the reward. The State

ultimately refrained from providing further details about this conversation because

it “[did not] want to get into hearsay before the Court.” H. 19. This version of

events directly contradicts Ms. Ellison’s testimony concerning how the reward

payment came about in 2001. 4

This was no mere slip of the tongue on the part of counsel for the State.

Indeed, three months after the evidentiary hearing, the Office of the Attorney

General issued a statement to the media, doubling down on the contradiction. The

statement explained that Ms. Ellison was the one who requested the reward from

the District Attorney’s Office, and that the District Attorney’s Office agreed to

provide it to her. See Beth Shelburne, Money for Justice?, WBRC (Sept. 11,

2019), https://www.wbrc.com/2019/09/11/money-justice/. The State’s brief

ignores this statement entirely and makes no attempt to reconcile it with Ms.

Ellison’s testimony.

Even in its latest filing, the State continues to rely on the premise that,

contrary to her testimony, Ms. Ellison initiated the process leading to the payment

4
Just as juries may discredit evidence that contradicts promises made by an attorney, this Court
should find that this crucial discrepancy between the State’s opening and Ms. Ellison’s testimony
further discredits the State’s only rebuttal evidence. See, e.g., Washington v. Smith, 219 F.3d
620, 634 (7th Cir. 2000) (finding counsel’s ineffectiveness prejudiced defendant because trial
counsel identified witnesses during voir dire and then failed to call them, giving the jury “good
reason” to find the defendant’s defense “dubious”).

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in 2001. It was never within Ms. Ellison’s control when she would be paid. Yet

the State argues that Mr. Johnson has provided no explanation as to “why Ms.

Ellison would have waited a full three years after she testified to seek the reward”

if her motive for coming forward was monetary. State’s Br. at 15 (emphasis

added). The documentary evidence and testimony establish that the State, already

aware of Ms. Ellison’s expectation of receiving the reward, contacted her when it

was ready to give the reward to her. In its attempts to deny suppression of this

evidence, the State continues to contradict its own witness, suggesting that Ms.

Ellison was the one to initiate the reward application three years after trial, even

though she unequivocally testified that she had not done so. H. 57–58.

Fourth, the State contends that, regardless of its meaning, the letter does not

prove that the State knew of Ms. Ellison’s motivations at the time of trial. State’s

Br. at 9. The State suggests that, even if the letter means what it says, it proves

only that the State knew about Ms. Ellison’s motivations in 2001. But the letter

establishes that the State was aware of Ms. Ellison’s motivation at the time of trial.

Pet’r Ex. 17 at 9–10. It is undisputed that Ms. Ellison did not have any

conversations with the State about her motivation between her testimony in 1998

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and her receipt of the $5,000 check in 2001. 5 H. 117–22. Further, Ms. Ellison

admitted that she had not discussed her motivations with any State representatives

when they called her in 2001 to sign for the reward. H. 117–22. Thus, the

evidence supports, by a preponderance, only one conclusion: The State could not

have learned of her motivation after trial; instead, the State already knew Ms.

Ellison’s motivations at that point and required no further contact with Ms. Ellison

to describe them in the 2001 letter.

This Court should not credit Ms. Ellison’s testimony, which indeed is

refuted not only by the other evidence but also by the State’s own lawyers. In the

absence of credible evidence rebutting Mr. Barber’s written admission, the Court

should find that Mr. Johnson has met his burden.

5
Ms. Ellison testified that “before [she] testified” at Mr. Johnson’s second trial was the “last
time that [she] talked to Mr. Wallace about the trial.” H. 122. She also confirmed “the last time
that [she] talked to Mr. Lawson” was before she testified at Mr. Johnson’s second trial. H.
122. Ms. Ellison answered affirmatively that the “last time [she] talked to any of the
prosecutors, anybody at the DA’s office about this case before [she] went and got [her] check
was before [she] testified at the 1998 trial.” H. 122. Additionally, she did not talk to anyone at
the sheriff’s office about this case after Mr. Johnson was convicted. H. 122–23.

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II. MR. JOHNSON’S BRADY CLAIM IS NOT PROCEDURALLY

BARRED.

Mr. Johnson has disproven the State’s assertion that his Brady claim is

procedurally barred. See Ala. R. Crim. P. 32.3.

The State’s assertion that Mr. Johnson could have discovered at trial that

Ms. Ellison was motivated by a reward cannot be squared with the ruling of the

CCA that his trial counsel exercised reasonable diligence in investigating and

questioning Ms. Ellison. See Johnson v. State, No. CR-05-1805, 2007 WL

2812234, at *36 (Ala. Crim. App. Sept. 28, 2007). The State argues that, to

overcome the procedural bar, Mr. Johnson must prove that his trial counsel “could

not have discovered the alleged Brady evidence” through “reasonable diligence.”

State’s Br. at 17–18. The State, in effect, argues that “reasonable diligence” means

one thing for the performance prong of Strickland (whether counsel reasonably

should do something) and another thing for purposes of a procedural bar (whether

counsel reasonably “could have” done something). The State’s brief ignores the

CCA’s ruling on this point and cites no case law for its implicit suggestion that Mr.

Johnson’s lawyers could have been reasonably diligent for Strickland purposes but

not with respect to Rule 32.2.

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Moreover, this Court should reject the State’s invitation to hold that a Brady

claim is procedurally barred even where trial counsel requested Brady information

and was told that none existed. Trial counsel filed a Brady discovery motion that

sought “[a]ny and all material in the possession of the state, or which through due

diligence may be learned by the state, which might exculpate the Defendant,

negate the charges against him, or lead to a reasonable doubt as to his guilt.” TCR.

49–52. The State did not disclose anything. Mr. Johnson’s trial counsel then asked

Ms. Ellison on cross-examination why she had first come to the police in this case.

TR. 708. She failed to mention any reward, and the State remained silent as she

claimed that she had come forward only because her “conscience bothered” her.

TR. 708.

Because the State failed to disclose Ms. Ellison’s true motivation, defense

counsel were operating under the assumption that, if asked about the reward

specifically, Ms. Ellison would deny coming forward because of the reward. See

Banks v. Dretke, 540 U.S. 668, 696 (2004) (quoting Bracy v. Gramley, 520 U.S.

899, 909 (1997)) (observing the presumption that “public officials have properly

discharged their official duties”). Defense counsel is under no obligation to ask

questions of a State witness that it believes will bolster the witness’s credibility.

Regardless, Brady carries no due-diligence component. Such a requirement would

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improperly shift the burden from the State to the defense and impede the truth-

seeking and fairness purposes of Brady. See id. (holding that a rule “declaring [a]

‘prosecutor may hide, defendant must seek’ is not tenable in a system

constitutionally bound to accord defendants due process”).

WHEREFORE, for the foregoing reasons, Mr. Johnson respectfully requests

that the Court vacate his conviction and death sentence.

Respectfully submitted this 20th day of December 2019.

/s/ Ty Alper
Ty Alper, #ALP-002
U.C. Berkeley School of Law
Death Penalty Clinic
Berkeley, CA 94720-7200
(510) 643-7849
talper@law.berkeley.edu

Kathryn Miller, #MIL-163

Cardozo Law School
55 Fifth Avenue
New York, NY 10003
(510) 847-3538
kathryn.miller@yu.edu

Patrick Mulvaney, #MUL-027

Southern Center for Human Rights
60 Walton Street, NW
Atlanta, GA 30303
(404) 688-1202
pmulvaney@schr.org

Counsel for Toforest Johnson

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on below-named

counsel via email on this 20th day of December 2019:

Jon Hayden, Esq.

Office of the Attorney General
Alabama State House
11 South Union Street
Montgomery, Alabama 36130

/s/ Ty Alper
Ty Alper

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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

TENTH JUDICIAL CIRCUIT
CRIMINAL DIVISION

TOFOREST O. JOHNSON, )
Petitioner, )
)
v. ) No. CC-96-386.60
)
STATE OF ALABAMA, )
Respondent. )
_________________________________)

[PROPOSED] ORDER ON THIRD RETURN TO REMAND

This death penalty case has been before the Court on a number of occasions and

has a long and complicated procedural history. There have been multiple trials, as well

as multiple hearings and remands during Rule 32 proceedings. At various times over the

past decade, many different issues have been the subject of judicial scrutiny. But only

one issue is currently pending in this Court, which has never before been considered on

the merits: Mr. Johnson’s claim that his due process rights were violated because the

State failed to disclose material, exculpatory information to his trial lawyers. In the

context of the entire case, this is but one narrow issue among many that Mr. Johnson has

raised. However, because this Court is ultimately persuaded that Mr. Johnson has met his

burden to establish a constitutional violation under Brady v. Maryland, 373 U.S 83

(1963), the Court has no choice but to order a new trial. In so doing, the Court makes no

judgment with respect to Mr. Johnson’s guilt or innocence in this case.

Following a summary remand from the United States Supreme Court, Johnson v.

Alabama, 137 S.Ct. 2292 (2017), the Court of Criminal Appeals instructed this Court to

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conduct an evidentiary hearing and issue an order with respect to Mr. Johnson’s Brady

claim, which is Claim III in his Third Amended Rule 32 Petition. Johnson v. State, No.

CR-05-1805, 2018 WL 1980778, at *2 (Ala. Crim. App. Apr. 27, 2018). The Court

conducted an evidentiary hearing on this claim on June 6, 2019. Both parties submitted

briefs and proposed orders. The Court has thoroughly reviewed the trial record in this

case, the allegations made in the Third Amended Rule 32 Petition, and the parties’

submissions, and it has carefully considered and evaluated all of the testimony presented

through witnesses during these Rule 32 proceedings, as well as documentary evidence in

the form of exhibits that were admitted into evidence.

Upon consideration of the evidence presented, and for the reasons that follow, the

Court concludes that Mr. Johnson was deprived of the constitutionally-guaranteed right to

have material, exculpatory evidence disclosed to his trial counsel. As a result, he is

entitled to a new trial.

I. THE BRADY STANDARD AND PETITIONER’S ALLEGATIONS.

Due process is violated where the prosecution has suppressed “evidence favorable

to an accused person . . . where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.

Under Rule 32.3 of the Alabama Rules of Criminal Procedure, the petitioner has the

burden of proving the facts necessary to warrant relief by a preponderance of the

evidence. If the petitioner can do so, this Court must order a new trial. See Ala. R. Crim.

P. 32.9(c) (mandating that, following an evidentiary hearing, “[i]f the Court finds in favor

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of the petitioner, it shall enter an appropriate order with respect to the conviction,

sentence, or detention”).

Toforest Johnson was convicted in 1998 and sentenced to death in connection with

the murder of Jefferson County Deputy Sheriff William G. Hardy on July 19, 1995.

Much about this case is undisputed. There is no dispute that the State’s key witness

against Mr. Johnson was a woman named Violet Ellison, who testified that she overhead

a jail inmate who referred to himself as “Toforest” make incriminating statements about

the murder of Deputy Hardy. At the June 2019 hearing, the State acknowledged that

“[n]o one has ever disputed that Ms. Ellison’s testimony was material and very important

to the case.” H. 193; see also H. 204 (“And, again, I’ll concede. Ms. Ellison’s testimony

at trial, very important.”). 1 There is no dispute that the jury credited Ms. Ellison’s

testimony and relied on it to convict Mr. Johnson. State’s Br. at 14 (“[T]he jury observed

Ms. Ellison’s testimony and, in finding Johnson guilty, obviously found that it was

credible.”). Finally, it is undisputed that the State paid Ms. Ellison $5000 for her

testimony and that it did so in a 2001 ex parte proceeding, which was revealed to neither

Mr. Johnson’s counsel nor the jury that convicted him.

In his Third Amended Rule 32 Petition, Mr. Johnson alleged that the State failed

to disclose to his lawyers that Ms. Ellison had come forward with her story “pursuant to

1
The Court adopts the following citation format proposed by counsel for Mr. Johnson: “H.__”
refers to the transcript of the June 6, 2019, evidentiary hearing. “Pet’r Ex.__” refers to
Petitioner’s admitted exhibits at the June 6, 2019, evidentiary hearing. “State’s Br.__” refers to
the State’s Brief filed on November 18, 2019. “C.__” refers to the designated page of the clerk’s
record of the original Rule 32 proceedings, numbered 1–1444.

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[a] reward offer, although it knew this to be the case.” C. 1171. The Court of Criminal

Appeals remanded the case for this Court to determine whether Mr. Johnson could prove

this allegation which, if true, would warrant the grant of a new trial. Johnson, 2018 WL

1980778, at *2.

II. MR. JOHNSON HAS PROVEN THAT IT IS MORE LIKELY THAN

NOT THAT MS. ELLISON GAVE INFORMATION IN THIS CASE
PURSUANT TO THE PUBLIC OFFER OF A REWARD.

Mr. Johnson presented documentary evidence to support his allegations. Most

directly relevant to his allegation that Ms. Ellison had specifically come forward with her

story “pursuant to the reward offer,” C. 1171, was a letter he admitted into evidence

written by then-District Attorney David Barber. This letter, addressed to the Governor of

Alabama, stated that “Violet Ellison, pursuant to the public offer of a reward, gave

information leading to the conviction of Toforest Johnson in the Circuit Court of

Jefferson County, Alabama, in the death of Mr. Hardy.” Pet’r Ex. 17 at 16–17.

The Court finds that (a) Mr. Barber’s letter establishes by a preponderance of the

evidence that Ms. Ellison was motivated by the reward and (b) Ms. Ellison’s testimony to

the contrary is not credible. There are three reasons why. First, the plain language of Mr.

Barber’s letter means that Ms. Ellison came forward in pursuit of the reward. Second,

Ms. Ellison’s alternative account from the 2019 hearing is not plausible. Third, the

totality of Ms. Ellison’s testimony from 1998 and 2019 supports the conclusion that she

knew about the reward at the time of trial.

The evidence establishes that the State was aware that Ms. Ellison was motivated

by the reward offer in this case, because that is what the plain language of the District

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Attorney’s letter says. The State argues a contrary interpretation, but presents no credible

evidence in support of that interpretation. Therefore, the Court credits the plain language

of the letter and finds that the petitioner has met his burden.

The State argues that in the context of Mr. Barber’s letter regarding Ms. Ellison,

“pursuant to” merely means “in accordance with,” and not “in pursuit of” or “because

of.” State’s Br. at 8. This Court does not find merit in that argument given the

circumstances in which the phrase was used. As counsel for the State conceded at the

hearing, “because of” is the natural reading of the phrase. H. 196 (“[W]henever you hear

the phrase ‘pursuant to,’ I think some people, and I also, think it means ‘because of.’”).

Moreover, “pursuant to” is the phrase that, in context, would be necessary for the District

Attorney to establish for State officials that Ms. Ellison was entitled to the reward that

motivated her to give information against Mr. Johnson in the first place. In any event,

Mr. Johnson need only prove that it is more likely than not that the letter established the

fact he alleged in his petition, namely that Ms. Ellison came forward with her story

“pursuant to the reward offer.” C. 1171. The District Attorney’s admission, contained in

a carefully crafted official letter regarding the disbursement of government funds, states

exactly that.

The only evidence the State introduced to rebut Mr. Johnson’s case was the

testimony of Ms. Ellison herself. To the extent Ms. Ellison’s testimony is at odds with

the plain language of the District Attorney’s letter concerning the reward, this Court does

not credit Ms. Ellison’s version of events. Ms. Ellison testified that she was not aware of

the reward at the time it was offered, at the time she testified in a pretrial hearing, or at

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either of the two times she testified at Mr. Johnson’s trials. She testified that the first

time she heard about the reward was in 2001, when an unknown representative of the

Jefferson County District Attorney’s Office contacted her and, for the first time ever,

informed her she was eligible for a large cash reward in connection with her testimony

against Mr. Johnson and asked her to come to the office to “pick up the check.” H. 122.

The Court appreciates that Ms. Ellison was testifying in this Court about matters that

occurred many years ago. But having observed Ms. Ellison on the witness stand and

after carefully considering her testimony, the Court finds that her account of when and

how she learned about the reward is implausible and not credible. 2

In addition to contradicting the written admission from the District Attorney’s

Office, it defies logic that the State would, years after a trial, reach out to a witness who

had never requested a reward or expressed any interest in it, and offer thousands of

dollars of State funds. The alternative is much more plausible, namely, that the witness,

who was suffering financial hardship at the time, and who admitted reading the extensive

2
Counsel for the State apparently did not expect Ms. Ellison to testify as she did. Counsel
represented to the Court that he spoke with Ms. Ellison prior to the June 2019 hearing and that,
based on that conversation, he expected her to say that someone told her about the reward in
2001, and that she then approached the District Attorney’s Office to request it. H. 18–19 (“A
few years later, she had a conversation with someone who mentioned the reward. And I’m not
going to get into that conversation. I don’t want to get into hearsay before the Court. But after
that conversation, she made an inquiry to the district attorney’s office.”). Not only did Ms.
Ellison contradict this proffer when she actually testified, she repeated several times that she
knew nothing about the reward until contacted by the District Attorney’s Office. See, e.g., H. 57
(“I didn’t know anything about a reward until approximately three years later . . . when I got a
call from the district attorney’s office.”).

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news coverage of the case and talking about it with family members before giving

information to the police, expressed interest in the reward at the time she came forward.

Because the Court does not credit Ms. Ellison’s testimony about when or how she

first heard about the reward, her testimony overall does not serve to rebut the

documentary evidence in the record. 3 District Attorney Barber wrote his letter in 2001,

much closer in time to the relevant events than Ms. Ellison’s testimony in June 2019.

The Court finds that it is more likely than not that the District Attorney’s Office

contacted Ms. Ellison in 2001 to facilitate the provision of the reward in this case, but it

did so because it was already aware she had expressed interest in receiving it.

In summary, the District Attorney’s written admission is credible on its face, and

the only evidence that the State offered to undermine the letter was Ms. Ellison’s

testimony, which is not credible. Thus, the Court concludes that it is more likely than not

that Ms. Ellison gave information in this case pursuant to the public offer of a reward, as

Mr. Johnson alleged in his petition.

III. MR. JOHNSON HAS PROVEN THAT IT IS MORE LIKELY THAN

NOT THAT THE STATE WAS AWARE OF MS. ELLISON’S
MOTIVATION AT THE TIME OF TRIAL.

Mr. Johnson must prove not only that the State was aware of Ms. Ellison’s

motivation, but that it was aware of those motivations in time to disclose them to defense

3
The State argues that “[t]he relevant focus in this Court’s Brady analysis is not how Ms.
Ellison learned about the reward but when she learned about the reward.” State’s Br. at 12.
However, Ms. Ellison’s account of how she learned of the reward is implausible and contradicts
the State’s own statements. That implausibility also undermines her testimony about when she
learned of the reward.

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counsel prior to or during trial, and that it failed to do so. It is undisputed that the State

never disclosed Ms. Ellison’s motivations to defense counsel, but the State does dispute

whether it was aware of those motivations at the time of trial.

District Attorney Barber’s letter was dated August 7, 2001, establishing that the

State was aware of her motivation as of that date. Pet’r Ex. 17. Ms. Ellison testified that

she did not have any conversations with the State about her motivation between her 1998

testimony and the time at which she was given the $5,000 check in 2001. H. 65–66.

Further, Ms. Ellison testified that she did not have conversations about her motivations

with any State representatives when they called her in 2001 to sign for the reward. H.

65–66. Ms. Ellison’s testimony was undisputed on these points. The State presented no

evidence of any such conversations to contradict the plain language in Mr. Barber’s

letter. Thus, the evidence supports only one conclusion: that the District Attorney was

able to represent Ms. Ellison’s motivations to the Governor in 2001 because the District

Attorney’s Office already knew what they were. Ms. Ellison had notified the State of her

interest in the reward during her pre-trial interviews—the only time in which she spoke

with anyone about the case. H. 117–22.

The Court thus finds that it is more likely than not that the State was aware of Ms.

Ellison’s financial motivation at the time of trial.

IV. THE SUPPRESSED INFORMATION WAS MATERIAL.

The Supreme Court has held that suppressed evidence is material where there is a

“reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682

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(1985). Thus, in proving materiality, the defendant must only show that the suppressed

information would have “undermine[d] confidence in the verdict.” Kyles v. Whitney,

514 U.S. 419, 435 (1995).

The Court concludes that the withheld information was material. Indeed, the State

made no effort to contest materiality in its post-hearing brief. The State agrees that Ms.

Ellison’s testimony was the key to its prosecution of Mr. Johnson. Without that

testimony, the State had no other evidence connecting Mr. Johnson to the murder of

Deputy Hardy. Even the lead trial prosecutor testified in this Court in 2014 that the case

against Mr. Johnson at trial “was not very strong, because it depended on the testimony

of Violet Ellison.” Pet’r Ex. 12 at 25.

As the State points out, the jury evidently believed Ms. Ellison’s testimony,

despite defense counsel’s attempts to discredit her. State’s Br. at 14. Had the State

informed Mr. Johnson’s trial attorneys that Ms. Ellison was motivated by the reward

when she gave information against Mr. Johnson, they would have been able to impeach

her credibility on cross-examination. “Impeachment evidence . . . as well as exculpatory

evidence, falls within the Brady rule.” Hamilton v. State, 677 So. 2d 1254, 1260 (Ala.

Crim. App. 1995) (quoting Bagley, 473 U.S. at 676). This is because impeachment

evidence “may make the difference between conviction and acquittal.” Bagley, 473 U.S.

at 676. In a case like this one, where the State’s evidence was thin and depended on one

witness, the State’s withholding of exculpatory information that would have provided an

opportunity for impeachment of that witness undermines this Court’s confidence in the

outcome of the trial.

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The Court finds that it is more likely than not that, had the State not suppressed the

exculpatory information, there is a reasonable likelihood that the result of the trial would

have been different.

V. THE CLAIM IS NOT PROCEDURALLY BARRED.

The State argues that this claim is barred because it could have been raised at trial

or on appeal. The Court does not agree. Mr. Johnson has met his burden of disproving

the existence of this procedural bar by a preponderance of the evidence. His trial

attorneys requested Brady evidence from the State pre-trial, and the court ordered such

evidence produced. However, the State did not disclose any information related to Ms.

Ellison’s motivations for coming forward until 2019, pursuant to the Court’s discovery

orders. It was not unreasonable for counsel to rely on the State’s representation that

Brady evidence of this kind did not exist. Johnson v. State, No. CR-05-1805, 2007

WL 2812234, at *36 (Ala. Crim. App. Sept. 28, 2007). The nature of a Brady claim

is such that it cannot be raised until the exculpatory information is disclosed or

discovered. Here, the Court finds that Mr. Johnson has met his burden of disproving the

existence of a procedural bar.

VI. CONCLUSION.

The Court does not reach its conclusion lightly and is loathe to disturb a verdict

that was reached more than two decades ago. But the passage of time is not a reason to

ignore a constitutional violation that is being considered on the merits for the first time.

Mr. Johnson has proven that it is more likely than not that the State withheld information

that would have undermined the State’s key witness in this death penalty case. The Court

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concludes that, but for the State’s suppression, there is a reasonable probability that at

least one juror would have had a reasonable doubt about Mr. Johnson’s guilt.

Accordingly, Mr. Johnson is entitled to a new trial.

WHEREFORE, for the foregoing reasons, this Court hereby sets aside the

conviction and death sentence in this case.

So ORDERED on this the ________ day of __________________, __________.

_____________________________
Judge Teresa Pulliam
CIRCUIT JUDGE

cc: Ty Alper, Esq.

Patrick Mulvaney, Esq.
Kathryn Miller, Esq.
Jon Hayden, Esq.

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