Whitmire: Prove me wrong, Kay Ivey. A manâs life depends on it.
This is an opinion column.
Gov. Kay Ivey, I need you to prove me wrong.
I don’t think you’re trustworthy with the power over life and death. I don’t think you have it in you to set things right.
But dang, I want you to show me. I need you to show me I get things wrong, too. Because I don’t want to be right this time. A man’s life depends on it.
On Monday, the United States Supreme Court refused to hear the case of Toforest Johnson, who awaits execution on Alabama’s death row. He was convicted and sentenced to death for the 1995 murder of William Hardy, an off-duty Jefferson County deputy sheriff killed while moonlighting as a hotel security guard.
The trouble is, there’s a mountain of evidence that Johnson didn’t do it. And very little evidence that he did.
This case has now received a great deal of media attention, but a new podcast by Beth Shelburne, a former Alabama TV reporter, might be the most comprehensive yet. Called “Earwitness” for the one sliver of evidence the prosecution used to tie Johnson to the crime, the series combs through the case in more detail than any other reporting has.
Every Alabamian needs to listen to this podcast, especially you, Governor.
Shelburne interviewed bystanders at the murder scene, alibi witnesses who put Johnson at a nightclub on the other side of Birmingham, and Johnson’s prosecutor. Even the man who put him on death row has joined the call for a new trial.
She poured through the case file and listened to hours and hours of recorded police interviews, as a key eyewitness changed her story repeatedly, naming six other alleged shooters before implicating Johnson and his friend Ardragus Ford.
And she walks through the most bizarre curiosity of this case: How prosecutors were so desperate to convict somebody of this crime that they simultaneously accused two different men of being the shooter. They charged two defendants with the same crime, held two trials in Birmingham at nearly the same time, argued in each one that their guy pulled the trigger and waited to see which case would stick.
Ultimately, Shelburne makes the case Johnson’s court-appointed defense lawyers failed to deliver — not only is there room here for reasonable doubt but there’s clear and compelling evidence Johnson didn’t do it.
She’s not the first to come to that conclusion. Many others have, including former Alabama Attorney General Bill Baxley — a Democrat who once fought to bring back the death penalty in the state — and former Alabama Chief Justice Drayton Nabers, a Republican. Jurors in the case have said they wouldn’t have voted to convict if they knew then what they know now.
The Jefferson County District Attorney Danny Carr has said Johnson deserves a new trial. But Alabama Attorney General Steve Marshall has fought those efforts in court.
Perhaps most importantly, the prosecutor, Jeff Wallace said he has doubts about Johnson’s guilt.
And that, Governor, is the one person I’m hoping we can all draw some inspiration from.
No prosecutor should tell a jury there’s proof beyond a reasonable doubt when they’re accusing someone else of the same crime in a different courtroom.
No prosecutor should ignore alibi witnesses or that the car seen at the scene wasn’t the same car Johnson rode in that night.
No prosecutor should shrug off a key witness changing her story under pressure from police.
No prosecutor should do what Wallace and his colleagues in the Jefferson County District Attorney’s office did to return a conviction at all costs.
But if somebody did those things, I’d hope they’d have the strength of character to admit such a mistake and try to put things right.
That’s hard. That’s rare. And more of that is what Johnson needs right now.
Because you, Governor, are supposed to be the safeguard against our system killing innocent people. A governor has the authority to commute a sentence to life in prison, which isn’t enough, but it would get Johnson off death row.
And it would give Johnson more time.
Because it’s not too late to do the right thing. But one day it will be. One day it will be too late for Johnson.
One day it will be too late for you.
Your legacy, your conscience, your soul, if you believe in such things — all are at risk here. Your staff, who probably already have their eyes on jobs when your administration is over, is responsible, too.
Will you help put a man to death for something he didn’t do? Or will you do what’s right?
You, Governor, are responsible for safeguarding the system. You can pull the lever that saves this man’s life. And if you don’t, it’s your hand on the switch that kills him.
I don’t think you have it in you, but I’d be happy to admit I was wrong.
Kyle Whitmire is the state political columnist for AL.com and the 2023 recipient of the Pulitzer Prize for commentary. Sign up for his weekly newsletter and get “Alabamafication” in your inbox every Wednesday.
More columns on this case by Kyle Whitmire
Give Toforest Johnson a new trial, or better yet, a pardon. Now.
An innocent man is on death row. Alabama officials seem OK with that.