Chapter 6 | Misfiled

You know that moment when everything lines up when life gives you the green light and you just go That's the 2026 Toyota Camry no hesitation no friction just a car that's right there with you ready responsive In control the whole way through because when it's your moment, you shouldn't have to think twice the 2026 Toyota Camry go like you mean it test drive at your local Toyota dealer or visit Toyota dot com today Toyota let's go places see packages and options at Toyota dot com for future availability You Last time on ear witness Follow those walking that door stand up on this table and say what you said We got a full table now We got all the evidence we need This Ellison would you tell us about the information that you have for us? Yes, my daughter To use her three way to call for his home board and he named his fellow engineers to barge Johnson We had a weak case placed on the test on in one with us The only evidence supposedly they had against was this ear witness who had never heard him speak before Who had no idea who he was This case is all about Alternative worlds that are in conflict with each other and in conflict with truth and in conflict with what our justice system stands for We forget sometimes that that was a third person on that phone We told him that this credit's what this lady say she heard You know, I mean and now how close how much closer can you get than that? Why did the jury believe this woman who eavesdrop on the call over you who actually have on the call? I don't understand. I never understood it You know the victim's family deserve to know what happened to their loved one But they they get no no justice no peace out of A wrongful conviction, you know, and this is simply a case of just anybody to do You Do you remember the first time you met him I do Ty Alper was just starting out his legal career at the Southern Center for Human Rights when he met to forest, Johnson To forest was one of the first people on death row that tied been assigned to represent In January of 2003 Ty gets into one of the old volvos that the Southern Center had in their parking lot in Atlanta and drives four-hour south to Holman prison and at more Alabama the first time I met him was down at Holman I was by myself and We I was gonna go down and Make sure that he was okay with us representing him and to sort of tell him where his case was Ty is 29 years old and here's what he knows To forest Johnson is just eight months older than he is and he's been on death row for over four years For a crime he says he did not commit When Ty finally gets inside the prison. He's taken to a room called the visiting yard But it isn't a yard at all. It looks like a middle school cafeteria surrounded by plexiglass Outside the plexiglass correctional officers and men in prison uniforms white slacks white shirt with Alabama Department of Corrections stamped on the back are walking by Inside there's no AC and the sad attempt of cooling the room is left to metal fans that hang in the corners To forest sits at a table in a plastic chair across from Ty Ty tries to talk quietly so he doesn't disturb other lawyers working with their clients on the yard But loud enough to be heard over the roar of the fans Then I remember saying him you know mr. Johnson. I want you to know where the very early stages of your appeals There's many rounds of appeals to go we're gonna file a petition in the US Supreme Court Then we're gonna go back into state court if we lose there We're gonna go back into federal court and all this could take many years and he just started crying And I assumed that he was Upset because I knew that he had claim that he was claiming he was innocent and I assumed that he was upset that This was gonna take so long and I asked him what was wrong and he said that He was so happy because he had just assumed that they could come any minute and take him to be executed And it was just the thing that struck me the most because not only had he been screwed over in pretty much every possible way you can be but nobody was telling him anything about what was going on in this case But to forests days without a lawyer to fight for him are over It's now up to tie and the team of lawyers at the Southern Center to do what no one has done before Thoroughly investigate to forests conviction a Conviction that hinged on the word and credibility of a single witness Violet Ellison I'm Beth Shelburn. This is ear witness chapter six miss filed After tie leaves home in prison he and the rest of de forest's new legal team go through the case They need to understand how their new client ended up on death row They hear about de forest alibi that he was at tease place when deputy Hardy was shot They learn about Yolanda Chambers changing stories They read how the state presented conflicting theories at different trials Now it's clear to the legal team To forest Johnson did not kill deputy Hardy The state's case completely revolved around violet Ellison's testimony So we knew that that was a potentially fruitful area to investigate because she was the state's whole case They need to figure out whether they can challenge violet Ellison's testimony if they can show that it wasn't reliable They can argue that to forest deserves a new trial So they need to know why did violet Ellison come forward in the first place? Prosecutor Jeff Wallace told two juries that violet was a credible witness Someone who overheard to forest Johnson admit to the crime and she came forward because it was the right thing to do But there were other reasons violet Ellison might have come forward We knew the reward was offered because it was all over the papers But we didn't know who got it or if violet Ellison got it The reward was not a secret. It was mentioned in press releases and reported on TV news So the next step was okay, well were there questions about her credibility that the jury never heard and an obvious one was what she paid for her testimony If violet Ellison knew about the reward money before trial or even if she had qualified for the reward The jury should have been told this when they heard her testimony The legal issues here get complicated fast But it's important to understand that the prosecution must turn over anything that would be helpful to the defense It can be a lead on another suspect or some forensic report that casts doubt on a piece of evidence Or information that calls the credibility of a state's witness into question This is called Brady information after a famous US Supreme Court case called Brady V. Maryland And if a court finds out later that prosecutors failed to turn over Brady information That's a constitutional violation and the court will order a new trial So if prosecutors knew that violet Ellison came forward looking for the reward They should have told to forest trial lawyers about it and then they could have brought it up at trial They could have told the jury, "When you go back and deliberate about Violet Ellison's testimony, remember there's a reward being offered and she wants that reward. Are you sure money isn't part of the equation here?" But the jury never heard anything about the reward. She was very credible. Monique Hicks was on the jury into Forest's second trial and she voted to convict to Forest, based on Violet Ellison's testimony. She just seemed very truthful like she had nothing to gain by coming forward. She had heard this information and she felt like I have to share this. She was a very credible witness compared to some of the others that took the sand like, we believed her. Obviously we believed her because we convicted him and it was on her testimony. After turning a conviction, is damn near impossible. Our system prioritizes finality in part because a jury's verdict is considered a community statement and given great weight. So for to Forest to get a new trial, his lawyers needed to prove two things that Violet Ellison came forward with her story in the hopes of getting the reward and that police and prosecutors were aware of this true motivation. There's one big problem. If Violet Ellison had been paid, documentation of the payment should have been into Forest's case file, but there wasn't anything there. Still, tie and the other attorneys had a hunch that Violet Ellison got the money. The legal team tried calling everywhere they could. The sheriff's office, the governor's office, the records division. What should have been just a simple phone call turned into a multi-week endeavor. Finally, someone at the governor's office said they might have something and would send over a fax. I do remember us all hovering around the fax machine waiting to see what it was because it was the first time that anyone had acknowledged that there might be something that was helpful. The fax machine spits out a piece of paper signed by Judge Alfred Bayhackle, the man who presided over to Forest's trials and sentenced him to death. The paper authorized Violet Ellison to receive $5,000 in reward money in exchange for her testimony that led to the conviction of to Forest Johnson. That was when we knew, okay, she did know about this reward. She was motivated by the reward when she testified and the judge knew about it in an order that was not included in the court file. For to Forest's legal team, this was a huge first step. The language in the court order said that Violet Ellison came forward pursuant to the public offer of a reward. And again, this authorization document was signed by the judge. It's an official court document. It should have been in to Forest's court file right there where everyone could see it. But it wasn't. Instead, to Forest's legal team had to go on a bureaucratic goose chase to find it. Was someone trying to hide something? But other documents were missing from the public file. So a young investigator working with to Forest's legal team named Jason Marks went right to the source. He walked up to Violet Ellison's house, holding Judge Bayhackel's court order that authorized her payment in one hand and knocked on her front door with the other. When I showed up at her house, she said something about the phone calls and I said, "Oh, I'm not here to talk to you about the phone calls, I'm here to talk about the reward that you got." And that's when she said, "I didn't get a reward." And I was like, "Oh, well, that's funny." I was like, "We have some paperware here that says you got a reward." And so basically, yeah, so basically confronted her with the document. She said, "Oh, yeah, I did get a reward, got $5,000." After initially denying it, Violet Ellison told Jason the state paid her $5,000 for testifying against to Forest Johnson. We knew when we got the judge's order that he had authorized the payment and then she told us that she got paid. So we knew it all. When you take a step back, he's on death row because the jury believed a woman who they didn't know was being paid for her testimony and that should cause real concerns and questions about the validity of the conviction. To Forest's legal team files a Brady claim against the state that argues the jury and to Forest trial should have heard about the reward. Violet Ellison knew about the reward when she came forward and that the state suppressed the information on purpose. The state denies everything. They deny any Brady violation and they deny all of the allegations into Forest's petition, including that Violet Ellison was motivated by the reward and that she was paid $5,000. But to Forest's legal team has evidence to the contrary, the court order that was faxed to them and Violet Ellison herself. After the state submits a written denial of all of the charges brought by To Forest's legal team, the case heads to court. But Alabama courts won't hear the case. They say the reward doesn't qualify as Brady, so the appeal takes years to make its way through the courts. And to Forest and Ty first met, To Forest's five kids were all under the age of 10. And as the Brady claim crawls through the legal system, 17 years go by. To Forest's oldest daughter has graduated college and his four other kids are having kids of their own. Finally, To Forest's legal team gets the case in front of the United States Supreme Court. The justices tell the Alabama courts that they're wrong for not reviewing To Forest's Brady claim. The state of Alabama must hear the evidence about the reward. Ahead of the hearing, Judge Teresa Pulliam gives the state very clear orders. You have to turn over everything that you have that concerns a reward payment. You have to turn it over to Mr. Johnson's lawyers. So the state gives To Forest's legal team what they say are all of the documents about To Forest's case. An attorney representing the state tells Judge Pulliam the files contained nothing about anyone applying for a reward or being granted a reward. I think it was eight or nine bankers boxes of documents and we went through every single page looking for any mention of a reward payment about Ellsson and there was nothing in there. But then, To Forest's legal team gets a tip from an insider, the woman who served as office manager at the Jefferson County District Attorney's Office when To Forest was on trial. So she told us that if we were only looking in the case file, we weren't looking everywhere. That the documentation might be because they also had a reward file that they kept separate from the case files that would include paperwork and documentation of witnesses who had sought rewards and/or been paid rewards. Reward information in the DA's office, according to this source, was kept in a separate, confidential file away from prosecutors involved in trials like Jeff Wallace. This meant he couldn't turn it over to To Forest lawyers because he didn't know about it. To To Forest's attorneys, this meant the information about the reward was kept from them intentionally suppressed. The judge orders the DA's office to turn over this separate, confidential file. We got an email that said we found these documents that had been misfiled and here they are. Here they are. After 17 years, the state finally turned over every document to Forest lawyers had asked for the hidden treasure trove. An application for the reward that's signed by Violet Ellison, a copy of the actual check for $5,000 made out to Violet Ellison. An email exchange between District Attorney David Barber and the governor's office about how to pay the reward and a letter from DA Barber asking the governor to pay Violet Ellison the money saying that she came forward pursuant to the offer of a reward. [Music] If this hidden information about the reward kept away from Toforest Lawyers for 17 years doesn't count as prosecutorial misconduct as a Brady violation, what does? But according to the state, all of these documents were simply misfiled. When I hear misfiled, I imagine someone accidentally putting a document into the wrong folder or maybe a paper falling behind a cabinet. But that's not what happened. It sounds like they had it organized in a file they kept explicitly for rewards. A file that no one seemed to know about except the office manager and the DA himself, David Barber who headed the prosecutor's office. How was this acceptable? Yes, I was calling for David Barber. Mr. Barber, my name is Beth Shelburn. I called David Barber, who's now retired after serving as Jefferson County's top prosecutor for 24 years. He was DA when Toforest was tried for capital murder. And personally involved in the reward issue. He wrote the letter asking the governor to pay Violet Ellison. The defense team for Mr. Johnson didn't have any records about the reward until 2019, the Attorney General's Office produced the records and said they had been misfiled. Okay. Does that sound strange to you or do you have any idea how that could have happened? The AG's office, if they said he got misfiled and I guess he got misfiled, human error, I guess. I don't know. I don't say I can guess people. I mean, things happen, you have people working in agencies, DA's offices, AG's offices, governor's office, things get misfiled and I mean, it happens. It happens? Actually, it did happen at least one other time on Barber's watch. In 2004, a man named Montez Spradley was sentenced to death for murder based on the testimony of one witness, just like to Forrest Johnson. Eventually, Spradley's lawyers discovered the star witness was paid $10,000 for her testimony, but police and prosecutors never disclosed the reward payment because the reward documents were kept in the same separate file as Violet Ellison's reward payment. The judge in that case also didn't disclose information about the reward. The judge was Gloria Bayhackle, the sister of Alfred Bayhackle, the judge into Forrest trial. Hello. Hey, my name is Beth Shelburn. I was wondering if Mr. Alfred Bayhackle is here. My producer, Mara and I went to judge Alfred Bayhackle's house, hoping to talk to him about these off-the-record payment authorizations. But he told us that he wasn't interested in commenting on any specific cases or his time as a judge. Contest Bradley was able to prove his innocence and was released from prison in 2015. To Forrest and his attorneys, hope for the same outcome. I first heard about To Forrest Johnson's case in 2019 when the Brady hearing was scheduled. I was assigned to cover the hearing for WBRC, the new station where I used to work. This hearing would determine whether Violet Ellison's secret reward payment amounted to prosecutorial misconduct. I didn't know much about To Forrest's case back then, only that he was on death row for a crime that he said he didn't commit and was convicted on the testimony of an ear witness who was paid off the record. For preparation for the hearing, I met with To Forrest's cousin Antonio Greene and other family members at their uncle's house. They all said To Forrest was optimistic about the hearing. On the day of the hearing, I only took a pen and notebook into Judge Williams courtroom because she doesn't allow recording. I sat next to To Forrest's mother Donna in a middle row and I spotted To Forrest sitting at the defense table with his attorneys. This was the first and only time I've ever seen To Forrest Johnson in person. He was wearing an orange and white striped jail jumpsuit and was in handcuffs and leg irons at one point he turned and smiled at his family and I heard his mom next to me say softly, "Hey, baby." The courtroom was packed and much of the crowd was To Forrest's family and friends, but I also saw Jefferson County's newly elected district attorney seated in the first row, Danny Carr. He's the first black man to be elected top prosecutor in Jefferson County. A month before this hearing, a group of faith leaders who knew about To Forrest's case published an open letter to Carr asking him to push for a new trial. But at this point, Carr had not commented publicly on the case. The hearing starts at 9 a.m. To Forrest's attorneys present all of the documents that took the state 17 years to turn over. They argue that the documents show the state suppressed evidence that Violet Ellison initially contacted police in pursuit of the reward money and then the state hid that she was eventually paid $5,000. Next after 10 a.m. the state calls only one witness to testify, Violet Ellison. She's 77 years old and walks to the stand using a cane. She has short white hair and is dressed in a white blazer and black pants. After she sworn in, Violet Ellison says that she knew the victim and followed the details about the murder and investigation by watching the news and reading the newspaper. But despite all that and despite the fact that information about the reward was all over the news, she is vehement that she didn't know about the reward. She testifies that the first time she heard about the reward was after To Forrest was sentenced to death in July of 2001, three years after he was convicted. She says that's when someone from the DA's office contacted her and asked her to come in and sign papers for the reward money. At the end of this five-hour hearing, Judge Pulliam says she's not going to make a decision that day. She'll consider all of the evidence and then issue her ruling. To Forrest's mother Donna, sitting next to me, bursts into tears. After the hearing, I was going over my notes and noticed a big discrepancy between the state's story and Violet Ellison's testimony about what triggered the reward three years after To Forrest was convicted. In opening statements, the state lawyer said that Violet Ellison asked the DA's office about the reward. But on the stand, Violet said it was the other way around that they contacted her. This might seem like a minor detail, but knowing what triggered the reward payment is key in determining whether or not this is a Brady Violation. Who called who first, how did this payment come about? So, I emailed the Attorney General's office for some clarity, and they directly contradicted Violet Ellison's testimony again, writing, "Three years after the trial, Ellison requested the cash reward that had been offered by the governor." And since then, Alabama's Attorney General completely reversed the state's narrative, the AG's office now claims that the prosecutor asked for the reward to be paid unbeknownst to Violet Ellison. But former DA David Barber told me he wouldn't do that, that rewards were triggered by law enforcement, or a witness themselves applying for a reward. And prosecutor Jeff Wallace said he had nothing to do with rewards. "Everyone I asked gave a different answer, pointing the finger in a different direction. Nobody wanted to own up to triggering the payment." The state continuously changing its story on this important detail isn't just sloppy, it's incredibly suspicious. It takes nine months for Judge Pullium to issue her decision. She writes that she found Violet Ellison to be confident, describing her as "well-dressed and well-spoken" and that her "articulate testimony outweighed the evidence presented by to forest Johnson's attorneys." Pullium says the documents don't prove that Violet Ellison knew about the money when she testified, and don't amount to misconduct by the state. She doesn't address the fact that it took the state 17 years to admit they had paid Violet Ellison. "Really what she was doing was validating the credibility of Violet Ellison saying, I didn't know that there was even a reward offered in the case, which isn't possible to believe, and then validating her testimony that three years after the trial, not having known that there was even a reward offered in the case, the DA's office out of the blue called her up one day and said, "Hey, remember that case you testified in? We have $5,000 of the state's money that we'd like to give you for that. Do you want to come down and get it?" And she said, "Sure," and came down and got it, which is also impossible to believe. To forest legal team appeals the decision, and in April of 2021, I attend oral arguments in front of the State Court of Criminal Appeals. I notice all five judges on the court are white. In fact, everyone in the courtroom is white. The disconnect is striking. To forest Johnson isn't here. All these white people are discussing the fate of a black man who was locked away on death row, completely absent from this process. This dynamic isn't unique to this hearing. Black people make up 27% of Alabama's overall population, but 54% of the state prison population. There are no black appellate judges, and only three of the 42 elected DA's in Alabama are black. This lack of representation means it's almost always white people making policy and punishment decisions that impact a disproportionate, poor, and black population. To forest hearing in the Court of Criminal Appeals lasts just 49 minutes. It's another denial. At the end of the trial, once the verdict was read, and everything was done, the jury was finished with their job. Now, remember the judge saying that to forest would be sentenced at another date. Monique Hicks, again, who served on the jury into forest's second trial. Monique wanted to talk with me after she saw a news story about Violet Ellison and the reward payment, so I made the hour-long drive to her house to speak to her in person. Monique was 27 years old when she voted for To Forest's guilt and a death sentence. As soon as that was over, security quickly ushered the jury out the back door of the courthouse to the parking deck. She never found out if the judge agreed that To Forest should be put to death or spend life in prison. I never heard anything, didn't see it in the news, may have just missed it that night, the internet wasn't a thing. I couldn't look it up, Google it. So our honestly never knew ultimately what happened to Mr. Johnson. 20 years later, Monique gets a book recommendation from a friend. The sun does shine, a memoir by Anthony Ray Hinton, a black man from Birmingham, who was sent to death row in 1985 despite a solid alibi and no eyewitnesses tying him to the murder. He was exonerated 30 years later. And so I was reading the book and as I'm reading the book, I'm like, "Oh wow, this was set in Birmingham in the 80s." I was like, "I was on a jury in the 90s in Jefferson County in Birmingham." That's interesting. By the time I got to the end of the book, I remember I looked at my husband and I said, "Oh my goodness, I think we convict an innocent man." Because I was like, "There's no way 10 years later that the injustices and the corruption that were going on in the system had cleaned themselves up." About two weeks later, I'm sitting on my sofa and I open up my local news app to just read the headlines to Forest Johnson, has been claiming innocence for over 20 years on death row, something to that effect. And I opened up the article and started reading and I just started sobbing, like uncontrollable because I was like, "Oh my goodness, we did convict an innocent man." And he's been on death row all these years and I didn't know it. It wasn't until 2019, more than two decades after she voted to convict to Forest Johnson, that Monique learned that the state's key witness, Violet Ellison, was paid in secret for her testimony. You know, the star witness was paid and the defense didn't know it, the jurors didn't know it. So I was shocked and then I was like, "Well, how shocked were to Forest and his family when we accused him of being guilty?" So I just can't imagine what that was like to them another blow. At the time of the trial, Monique found Violet Ellison to be composed and confident. Do you think that your impression of her would have been different had you known she was being paid $5,000? I definitely believe we would have, as a jury, talked about that, like how credible is this testimony she's being paid for it. Yes, I do think that would have been conversations about it and I do believe it would have changed outcome. I really felt like the jury was used in this big game of injustice. We were just like, "Here's some theories. We're just going to keep throwing them out until we can get a group of people together to believe it." And I just feel like we were being used in this game. They needed a conviction. It was a high profile case. It was a sheriff's deputy. Somebody needed pay for it. And to me, it just seems like we're just going to throw these things out, gather people together until we get some that believe it. And unfortunately, I was in the group that believed it. Monique is one of three jurors that I've interviewed. All three regret voting to convict to Forest Johnson. None of them could quite put their finger on why they were convinced of his guilt beyond a reasonable doubt other than believing Violet Ellison. Once they learned she was paid for her testimony, it was like to Forest suddenly became real to them. The weight of their decision was crushing. But besides speaking out about their regret, there's nothing they can do. They can't take back their votes. they have to live with their decision. I felt a lot of grief, um, shame, guilt for having been a part of this. I'm pretty even kill person. I'm not a cryer. You know how some people cry about anything. That's not my go-to. I'm not a bit cryer, but anytime the subject comes up, it is like grief deep in my soul. And I just get very emotional. I felt like I needed to talk to the person at the center of the case outside of court rooms and legalies. I wanted to hear from Violet Ellison. She has a small brick house on a busy street in Birmingham. When I go there, the main front door is open and as I walk closer, I can see Violet Ellison sitting inside, wearing a robe. She stands up and turns to face me. Hey. Are you Miss Violet Ellison? Miss Ellison, my name is Beth. I'm a journalist and, um, I was hoping to talk to you about the deputy hearty murder that you were a witness in. Eventually, she steps out onto the porch where we continue the conversation. And, and I feel like I'm just being ridiculed for telling you to. And I do, I don't like it. Well, I just wanted to ask you about the, um, the issue of the reward. Since that, what is that? I talked to Violet Ellison for 20 minutes. And she tells me no less than a dozen times that she did not know about the reward when she came forward to talk to police and that she did not know about it when she testified against a forest at two trials. Do you think about the fact that he's on death road? I mean, I know you said you don't really just support the death penalty. Yeah, well, I did at first, you know, it troubled my spirit. And as time went by, you tried to forget the bad things that, you know, happened. But, um, it's a little surreal for me to be faced to face with Violet Ellison, this woman who's the linchpin of the entire case against to forest. As we say goodbye, she delivers the most ironic thank you I've ever received. Telling me, she appreciates me talking to her directly. Instead of relying on someone else's characterization of what she said. You know, nobody has come to me like you to see how I feel about it. And they just report it on what somebody say hearsay. And I don't like that because you'll never get the truth like that. There is a man on death row because the jurors believed Violet Ellison. Now we know what the jury didn't know at trial that she was paid for her testimony and that the state hid this information. They told the jury that Violet Ellison was credible and believable, and they still say that. But they weren't truthful about the reward. So why should we believe how they characterize their key witness? I need to see it. I know that's my criminal, but that's a true scam out of the devil. In a way she can get a dollar. Telling me, she ain't that type that's just going to help somebody just to help them. It got to have money. Wow. That's next time. Ear witness is a production of Lava for Good Podcasts in association with Signal Company #1. Executive producers are Jason Flom, Jeff Kimpler, Kevin Wardis, and me Beth Shelburn. The investigative reporting for this series was done by me and Mara McNamara. Producers are Mara McNamara, Hannah Beale, and Jackie Polly. Cara Cornhaber is our senior producer. Britt Spangler is our sound designer. Additional story editing from Marie Sutton. Fact check help from Catherine Newhand. And special thanks to Toforest Johnson's legal defense team. You can follow the show on Instagram, TikTok, Facebook, and Twitter at Lava for Good. To see behind the scenes content from our investigation, visit LavaForGood.com/EarWitness. You know that moment when everything lines up. When life gives you the green light and you just go, that's the 2026 Toyota Camry. No hesitation, no friction, just a car that's right there with you. Ready, responsive, in control the whole way through. Because when it's your moment, you shouldn't have to think twice. The 2026 Toyota Camry. Go like you mean it. Test out your local Toyota dealer or visit Toyota.com today. Toyota, let's go places. See packages and options at Toyota.com for future availability.