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Jefferson County DA asks for new trial for man sentenced to death

Eddie Burkhalter

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Jefferson County’s district attorney today has asked for a new trial for a man serving on Alabama’s death row, convicted of the shooting death of Jefferson County deputy William Hardy decades ago. 

And he’s not alone in that request. The lead prosecutor who convicted Toforest Johnson of shooting Jefferson County deputy William Hardy in 1995 is concerned about the case, and has joined in the district attorney’s request for a new trial. 

“A prosecutor’s duty is not merely to secure convictions, but to seek justice,” Jefferson County District Attorney Danny Carr wrote in his brief to the Tenth Judicial Circuit Court in Jefferson County. “After reviewing the circumstances of Mr. Johnson’s conviction and his subsequent Brady claim, the District Attorney has determined that its duty to seek justice requires intervention in the case based on a couple of factors.” 

Shanaye Poole, Johnson’s daughter, told APR on Friday that when she read Carr’s brief she screamed.

“We’re just really grateful to Danny for taking action,” Poole said. “That’s really all we ever asked for.”

Prosecutors in Jonhson’s trial presented no physical evidence or eyewitnesses tying Johnson to the shooting, and built the case on testimony from a single witness, Violet Ellison, who said that while eavesdropping on a phone call from a man in jail she heard an inmate who she thought to be Johnson admit to shooting Hardy. 

Ellison was paid $5,000 from the state to testify against Johnson, a fact that wasn’t made known to defense attorneys at the time. 

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Carr wrote to the court on Friday that the state, in several trials for people connected to the case, presented five different theories about who shot deputy Hardy, the case was originally based on testimony from a woman who admitted to repeatedly lying to police and prosecutors, and under oath. 

Carr also wrote that several people who have said they saw Johnson in another area of town at the time of the murder did not testify during the trial.

The lead prosecutor in Johnson’s trial met with Carr, the district attorney wrote to the court, and expressed concerns about the case “and supports this request as well.” 

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“It is the District Attorney’s position that in the interest of justice, Mr. Johnson who has spent more than two decades on Death Row, be granted a new trial,” Carr wrote. 

Poole said the family is going to continue to work to get her father home “so he can live his life, because it was stripped away from him.”

Ty Alper, one of Johnson’s attorney’s, told APR on Friday that Carr’s decision was welcomed news. 

“We’ve been trying for almost two decades to get someone in a position of power to seriously look at injustice in this case,” said Alper said. “And we’re really grateful that Danny Carr took the time to really review what is a complicated case, and concluded that our client is deserving of a new trial.” 

“That’s really admirable and significant and it shows that he is willing to walk the walk when it comes to fairness and justice, which is what you would hope out of a district attorney’s office,” Alper said. 

Poole thanked Alper for his decades of work on her father’s case, and said “there’s nothing I can do to repay him.”

On Dec. 12, The Innocence Project, a New York-based nonprofit that works to exonerate the innocent, filed a brief asking the court to grant Johnson a new trial based on the Brady  doctrine and what the nonprofit said are numerous other problems with Johnson’s conviction. 

“If ever a case bore the hallmarks of a wrongful conviction, Toforest Johnson’s is it,” wrote attorneys for the nonprofit to the court. 

The case is now in the hands of Attorney General Steven Marshall in the Alabama Court of Criminal Appeals. Marshall will have to agree to allow the case to revert to the Circuit Court for a new trial to take place.

Poole said the family is well aware that it’s not over yet.

“We are excited, and we’re hopeful,” she said. “But we, we understand that we still have a bigger mountain to climb.”

Eddie Burkhalter is a reporter at the Alabama Political Reporter. You can email him at [email protected] or reach him via Twitter.

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Internal report on Alabama inmate’s death backs statements by concerned whistleblowers

Almost all of the information in the report has already been published through APR’s own independent reporting on McMillian’s death, and the report corroborates much of APR’s reporting. 

Eddie Burkhalter

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Many of the allegations made by concerned workers at an Alabama prison about the death of an inmate were corroborated in a report filed by an officer who was involved in the incident. 

Many of the allegations made by concerned workers at an Alabama prison about the death of an inmate were corroborated in a report filed by an officer who was involved in the incident.

Darnell McMillian, 38, was on suicide watch when he died on June 22 after correctional officers placed him in a cell with another inmate, Demetris Eatmon, who was also on suicide watch. Statements by the two workers and a narrative in the report shed light on what happened in the moments of McMillian’s death.

According to the workers’ statements and the Alabama Department of Corrections (ADOC) internal report, once McMillian was placed in the cell with the other man a fight ensued and officers used pepper spray to break it up, but while the report notes two cans were used one of the workers say three cans were sprayed into the cell, and the excessive amount may have resulted in his death.

The two Alabama Department of Corrections workers spoke separately to APR with concerns about McMillian’s death – one by phone on July 1 and another worker on July 9. Each said they had worked with both of the inmates and the officers involved, and all knew that the other inmate who fought with McMillian was violent and that no other inmates were to be placed in his cell.

“Eatmon is a very volatile inmate. Very violent. Very big guy,” one of the workers told APR.  “You never put anybody in the cell with him.”

One of the workers told APR previously that once the two inmates were in the cell together they were enticed by the officers to fight, and that while they were uncertain of why they did so in this instance, such tactics are used by officers regularly when an inmate angers them, the person said.

Demetris Eatmon of Midfield pleaded guilty and is serving a 20-year sentence for attempted murder and robbery for an incident on January 12, 2004, in which he shot a man, according to court records. The duty officer report on McMillian’s death lists Eatmon as a member of the Black Gangster Disciple gang, and McMillian as a member of the Imperial Gangster Disciple gang.

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The lieutenant and three correctional officers who were involved in the incident all were assigned to work the mental health area of the prison, all knew the inmates well and all knew that no one else was to be placed in a cell with the other inmate, both workers said. The captain who was involved in the incident had just recently been promoted and may not have been aware, however, one worker said.

According to the duty officer report, which was completed by one of the officers involved in the incident, McMillian started hitting the other inmate while the officer was attempting to take handcuffs off the other inmate through a tray slot in the cell door. The other inmate broke free with one handcuff still attached and the two began fighting, according to the report and statements to APR by the employees.

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APR isn’t naming the officers or other ADOC employees involved with the incident, as there have been no criminal charges filed against any of them.

The worker who spoke to APR on July 1 said officers sprayed three cans of pepper spray into the cell, an excessive amount that may have killed him.

The worker said some time around 6 p.m. on June 22 three correctional officers placed McMillian into the cell with Eatmon, who was known to be violent. The duty officer report notes he was placed into the cell close to 6:15 p.m. that day.

The first worker to speak to APR in July said that officers enticed the two men to fight, and once Eetmon began threatening McMillian, McMillian took the first swing. The report also notes that McMillian swung first, while the other inmate was still partially handcuffed.

One officer “drew his Aerosol Deterrent Spray, Sabre Red can #6099417” and sprayed several bursts into the cell and ordered them to stop fighting, according to the report, which states that a  separate officer “retrieved the Sabre Red Cell Buster from the cube and administered a burst into the cell, with more verbal orders to stop fighting. Both inmates then complied.” The cube is a secure area for officers located in the center of the cell blocks.

“The inmate was yelling that he couldn’t breathe,” the employee told APR on July 1 referring to McMillian.

The other inmate was taken to the infirmary decontaminated and released back to ADOC custody by a nurse, the report states.

McMillian was taken to the infirmary in a wheelchair at around 6:25 p.m., according to the report, where a nurse “observed that inmate McMillian was non-verbal and unresponsive” and three nurses “began administering CPR and utilizing the Automatic External (sic) Difibulator.”

The report states that prison’s warden was notified and arrived at the prison at 7 p.m.. About 35 minutes later, paramedics arrived and at 7:49 p.m. called a UAB doctor who pronounced McMillion dead.

The first officer to have sprayed pepper spray into the cell then “secured cell S-11 with tape and the triage room in the Infirmary. Pictures were taken of S-11 and the triage room,” according to the report.

The worker who spoke to APR on July 1 said that before photos were taken, officers had inmates clean the cell of everything except for several spots of blood, which the worker said might make it appear to have been a homicide by the other inmate.”

Jefferson County Coroner Bill Yates told APR in July that McMillian’s final cause of death awaits toxicology and other lab results, which can take between four and six weeks, but that there did not appear to be any external injuries that could have caused his death.

“From our autopsy, I don’t believe we found any type of trauma that would explain death,” Yates said at the time.

The duty officer report notes the incident as “Death – Inmate-on-Inmate.”

ADOC spokeswoman Samantha Rose in a message to APR on Aug. 7 said that the investigation into McMillian’s death is ongoing, and therefore the department cannot comment on the matter.

Rose also verified that the duty officer report is authentic, but said that it doesn’t tell the whole picture.

“Please note this file represents an initial reporting of the incident and does not include nor is reflective of information gathered during the course of the ADOC’s ongoing investigation into Darnell McMillian’s death,” Rose said.

Rose also cautioned a reporter against publishing the report, saying that dong so could jeopardize the investigation.

“The information not only was unethically provided to you, it was provided in violation of the law. The disclosure of this protected information compromises the integrity of our active investigation, and we strongly advise you to consider the consequences of publishing it,” Rose said.

APR decided to publish the report in redacted form for several reasons. Almost all of the information in the report has already been published through APR’s own independent reporting on McMillian’s death, and the report corroborates much of APR’s reporting.

Additionally, the U.S. Department of Justice in a report released July 23 on the excessive uses of force against inmates by Aabama correctional officers, investigators note systemic problems of unreported or underreported excessive use of force incidents, a failure to properly investigate them and attempts by correctional officers and their supervisors to cover them up.

“These uses of excessive force—which include the use of batons, chemical spray, and physical altercations such as kicking—often result in serious injuries and, sometimes, death,” the report continues.

Federal investigators also noted that despite the large number of use-of-force incidents, a small fraction are investigated above the prison-level and sent to ADOC’s Investigations and Intelligence division.

APR also decided to publish the redacted report because it sheds more light on what those federal investigators said were inappropriate use of pepper spray on inmates, and instances of officers ignoring ADOC’s policies on the use of pepper spray.

“Chemical spray is regularly used as retribution. These kinds of applications of chemical agents violate the Constitution,” the report reads.

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Alabama Department of Corrections investigating inmate death

Robert Earl Adams, 40, died on Aug. 5 and although no foul play is suspected, a department spokeswoman in a message to APR said the exact cause of death is pending an autopsy.

Eddie Burkhalter

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(STOCK PHOTO)

The Alabama Department of Corrections is investigating the death of an inmate at the Donaldson Correctional Facility.

Robert Earl Adams, 40, died on Aug. 5 and although no foul play is suspected, a department spokeswoman in a message to APR said the exact cause of death is pending an autopsy.

“While Adams’ exact cause of death is pending the results of a full autopsy, at the time of his passing inmate Adams was not exhibiting symptoms of COVID-19, was not under quarantine following direct exposure to an inmate or staff member who previously had tested positive, and was not in medical isolation as a result of a positive COVID-19 test,” said ADOC spokeswoman Samantha Rose in the message.

Because Adams was not exhibiting symptoms of COVID-19, he had not been tested, Rose said.

An ADOC worker who contacted APR Friday morning about the death, who asked not to be identified for fear of repercussions from ADOC administrators, said it’s suspected that Adams may have overdosed after being given a cigarette laced with a drug.

Adams is at least the sixteenth state inmate to die this year from either homicide, suspected drug overdose or suicide. Additionally, fifteen inmates and two prison workers have died after testing positive for COVID-19.

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Alabama House speaker addresses arrest of Rep. Will Dismukes on theft charge

Eddie Burkhalter

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Rep. Will Dismukes, R-Prattville, turned himself in at the Montgomery County Detention Center Thursday.

Speaker of the Alabama House Mac McCutcheon, R-Monrovia, on Friday said a state representative arrested and charged with theft on Thursday is alleged to have committed the theft before he was elected and is due a presumption of innocence. 

Rep. Will Dismukes, R-Prattville, turned himself in at the Montgomery County Detention Center Thursday after a warrant for his arrest was issued for felony theft from a flooring business where he worked. The theft occurred at his place of employment between the years 2016 to 2018, Montgomery County District Attorney Daryl Bailey said Thursday.

“Like all Americans, Rep. Dismukes is due the presumption of innocence, and it is important to note that the crime of which he is accused was said to have occurred well before he announced his candidacy for the Alabama House,” McCutcheon said in a statement Friday. “As a former law enforcement officer, I have faith in the criminal justice process and trust that he will receive a full and fair hearing.” 

“Both Democrats and Republicans have been accused of similar crimes in the past, and we cannot tolerate such behavior whether the lawmaker involved has a D or an R beside their name,” McCutcheon continued. 

Dismukes in recent weeks has faced a torrent of calls for his resignation in recent weeks after posting to Facebook an image of himself attending a birthday celebration for the first grand wizard of the Ku Klux Klan, Nathan Bedford Forrest.

Dismukes has said he has no plans to resign, but if convicted of felony theft, Dismukes would be removed from office.

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Arrest warrant issued for Rep. Will Dismukes for felony theft

Dismukes is charged with first-degree theft of property in connection with a theft that occurred at his place of employment between the years 2016 to 2018.

Eddie Burkhalter

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Alabama State Rep. Will Dismukes, R-Prattville, has been accused of theft of property, a Class B felony. (WSFA)

An arrest warrant has been issued for Alabama State Rep. Will Dismukes, R-Prattville, for felony theft from a business where he worked, Montgomery County District Attorney Daryl Bailey said Thursday.

Dismukes is charged with first-degree theft of property in connection with a theft that occurred at his place of employment between the years 2016 to 2018, Bailey said during a press conference.

Bailey said the charge is a Class B felony and levied when a person steals in excess of $2,500 and that “I will tell you that the alleged amount is a lot more than that.” 

“The warrant has just been signed, his attorney has been notified and we are giving him until late this afternoon to turn himself in,” Bailey said.

Bailey said the employer contacted the district attorney’s office with a complaint about the theft on May 20, and after reviewing bank records and interviewing witnesses, the decision was made to charge Dismukes with the theft. 

WSFA reported Thursday that the theft occurred at Dismukes’ former employer, Weiss Commercial Flooring Inc. in East Montgomery. Bailey did not provide any more specifics on the charge but said the employer signed the arrest warrant after countless hours of investigation on the part of the DA’s office.

While the charge stems from a complaint filed months ago, Dismukes been in the headlines recently and faced a torrent of calls for his resignation in recent weeks after posting to Facebook an image of himself attending a birthday celebration for the first grand wizard of the Ku Klux Klan, Nathan Bedford Forrest.

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The event was hosted by an individual with close ties to the League of the South, a hate group, according to the Southern Poverty Law Center.

In response, Dismukes stepped down from his post as a pastor at an Autauga County Baptist church but defiantly refused to step down from the Legislature.

If convicted of the felony, Dismukes would be immediately removed from his seat in the Alabama House, to which he was elected in 2018.

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In June, the Alabama Democratic Party called for his resignation over previous social media posts glorifying the Confederacy.

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