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Transcript: The Rachel Maddow Show, 5/12/22

Guests: Jamie Raskin, Radley Balko


Top House Republican Kevin McCarthy is among those subpoenaed by the January 6 Select Committee. Interview with Rep. Jamie Raskin (D-MD).


CHRIS HAYES, MSNBC HOST: So, if we are going to let COVID circulate, relatively unchecked, which appears to be the current policy consensus, well then for the love of God, we need to do everything we can to use the tools that we have, which we have developed, to reduce the risk and disruption it poses.

That means really putting our back into the effort to develop a next generation of vaccine, and drugs, and getting things that we have like Paxlovid to everyone who needs it. It is an abomination if Congress, particularly the Republicans in Congress who are blocking this, walk away from that basic duty.

That is "ALL IN" on this Thursday night.

MSNBC PRIME starts now with Ali Velshi.

Good evening, Ali.

ALI VELSHI, MSNBC HOST: Well said, Chris. And it is good to have you back and on a mend. You have yourself a great evening. We`ll see you tomorrow.

And thanks to you at home for joining us this hour.

At the start of the year, it was a bit of an open question, would the Select Committee investigating the January 6th attack on the Capitol take the unprecedented step of subpoenaing fellow Republican members of Congress so that they could testify before the committee, and did the select committee even have the authority to do it.


CHUCK TODD, NBC NEWS ANCHOR: Do you think you`re going to have to subpoena a sitting member of Congress?

REP. BENNIE THOMPSON (D-MS): Well, I think there`s some questions of whether we have the authority to do it. We`re looking at it. If the authorities are there, there`ll be no reluctance on our part.


VELSHI: If the authorities there, there`ll be no reluctance on our part at the time. The chairman of the committee, the Mississippi Democrat, Bennie Thompson, was reluctant to issue subpoenas, I doubt it, Thompson told "The Associated Press". Quote: There`s no precedent to force that compliance.

But in the months since revelations have come to light which have forced the committee to grapple with a different question how could the committee not subpoena these members because after conducting nearly a thousand witness interviews and obtaining over 100,000 documents, one thing has become clear, efforts to contest Joe Biden`s legitimate election victory were not limited to the Trump White House and a kooky cast of sham lawyers and hangers on and conspiracy theorists. Elected Republican lawmakers were deeply involved in these efforts. They were integral to the president`s plan to over Trump -- and overturn the elections of the 2020 election.

A mind-boggling 147 House Republicans, look at them all, objected to certifying President Biden`s victory on January 6th, literally hours after their own workplace was ransacked by a violent mob. But for a smaller cohort of Trump diehards, their involvement went far beyond voting, text messages from Trump`s chief of staff Mark Meadows alone document his interactions with more than current and former Republican members of Congress regarding efforts to contest the election and the January 6th riot.

In recent weeks, we`ve learned that a previously unknown number of Trump`s allies in Congress attempted multiple post-election White House meetings at which Republican lawmakers strategized about ways to prevent Biden from taking office. They discussed pressuring the vice president and getting rid of Justice Department leadership replacing them with more compliant Trump- approved choices.

Direct witness testimony to the committee confirms they did so even after being advised by White House lawyers that what they were doing was plainly illegal. And while the committee clearly has documents and witnesses who can attest to those facts, they`ve yet to hear from those Republican elected members themselves. And so, today, in a move that surprised some, the committee subpoenaed five Republican members of Congress as part of its investigation into the attack.

The five recipients had either had conversations with President Trump that day spoke at the rally prior to the attack or played some role in plotting with Trump officials to overthrow the results of the 2020 elections. All five had previously been asked for voluntary testimony, all five have declined.

Now, the letters announcing the subpoenas were short. They were on a single page compelling the lawmakers to appear before the committee for a deposition by the end of the month. The most notable recipient, the top Republican in the House, Kevin McCarthy, whom we know spoke to Trump on the day of the attack. Multiple reports are clear that McCarthy and Trump got into an expletive-laden shouting match as the attack was unfolding.

Recent audio unearthed by "New York Times" journalists and first played on Rachel`s show showed McCarthy telling his leadership team shortly after the attack that what Trump did was atrocious and totally wrong. He said he would call upon Trump to resign. He also told colleagues that Trump acknowledged responsibility for the attack.

In fact, in plain view of everyone on the House floor five days after the riot, McCarthy said that Trump bore responsibility for the attack.


Of course, that was before he forgot all about those concerns and made a pilgrimage to Mar-a-Lago just a few weeks later to take a nice picture, make amends, pose for a photo with dear leader.

And then there`s Jim Jordan who attended many of those White House meetings at which strategies were discussed for overturning the election. The Ohioan was texting White House chief of staff Mark Meadows in the hours before the riot, suggesting ways to overturn Biden`s victory. Jordan also spoke to Trump multiple times on January 6. Just how many times you ask, that`s unclear.


INTERVIEWER: On January 6, did you speak with him before during or after the Capitol was attacked?

REP. JIM JORDAN (R-OH): I`d have to go -- I spoke with him that day after, I think after. I don`t know if I spoke with him in the morning or not, I just don`t know. I have to go back. And I mean, I don`t -- I don`t know when those conversations happen but -- but what I know is I spoke with him all the time.


VELSHI: Also subpoenaed today, Scott Perry, chairman of the House Freedom Caucus. He was apparently the architect of the plot to replace Justice Department leadership with a Trump crony who wanted to declare on DOJ letterhead that the election results were invalid until legislators in swing states that were won by Biden that they should delay certifying their results.

We also learned that recently, that prior to January 6, Perry supported the idea of, quote, directing thousands of angry marchers, end quote, from the rally over to the Capitol that day. The Alabama Congressman Mo Brooks spoke at the January rally that day urging the crowd to, quote, fight for America and, quote, carry the message to Capitol Hill. This is him.

Former staffer of McCarthy recalls that on the day of the riot, Mo Brooks was cheering on the mob from inside the House as the attack was underway, from inside. Brooks like the others also attended various White House strategy sessions to overturn Biden`s win. Recently, Brooks has admitted that Trump has repeatedly asked him to illegally rescind the 2020 election and restore him back to power, including several times in the past six months. I`m not quite sure how Mo Brooks himself was going to do that but anyway.

And finally, the Arizona Congressman Andy Biggs is credited with coming up with the idea of holding protests at the Capitol that day. In addition to attending White House meetings and attempting to convince state legislators that the election was stolen, Biggs was allegedly involved in seeking a presidential pardon for those involved in protesting the election that day.

All five recipients of today`s subpoenas blasted the committee calling it illegitimate, a witch hunt and a charade. Brooks even doubled down with a statement saying in part the election was stolen, and Donald Trump is the rightful winner, which was not the question that was asked of him. But notably, precisely, none of today`s subpoena recipients explicitly stated that they would reject the committee`s request. And while they rail against the illegitimacy of the committee, it`s notable that the courts keep disagreeing with them. In ruling after ruling, judges from all points on the ideological spectrum, including Trump appointed judges, keep consistently ruling the opposite, that the investigation is properly constituted, that it is doing something important and that it has a right to the information that it is seeking .

Today, the chairman of the committee, Bennie Thompson, said he hoped the Republican members of Congress would comply, quote, as hundreds of other witnesses have done. The clear implied threat there is if they don`t, their story will be left to be told by someone else.


REPORTER: How integral is their testimony and whatever they might have to say to the investigation and to the June hearings?

THOMPSON: Well, we would present at the June hearing what we found in the investigation. I would hope that those members who have been identified as having information will come forward. If they don`t, then we get to present the findings of our investigation without their response.


VELSHI: Without their response.

So what happens now? Outside of ethics investigations at Congress, there is no precedent for members of Congress issuing subpoenas to other sitting members of Congress. Today, members of the committee were repeatedly asked about whether they were worried about the precedent that this could set and the potential for retaliation in the event that Republicans take over the House in November.

Here was Maryland Congressman Jamie Raskin`s response.


REPORTER: This is an almost unprecedented step. This is rare for members to subpoena sitting members. What do you say about -- what that does to the broader workings of the institution?

REP. JAMIE RASKIN (D-MD): Well, an attempted coup and a violent insurrection at the Capitol interrupting the peaceful transfer of power are unprecedented events. And so, people have asked, does this set a precedent for the issuance of subpoenas for members of Congress in the future if there are coups and insurrections? And I suppose that it does.


VELSHI: Got a lot of questions. Unfortunately, my first guest is the perfect person to answer them, the aforementioned Maryland congressman, member of the January 6th investigation, Jamie Raskin.

Congressman Raskin, we appreciate your time. Thank you for being with us tonight.

RASKIN: Delighted to be with you.

VELSHI: Let me ask you about this. You have mentioned that you have every reason to believe that the Republican uh elected members who have been subpoenaed today, the five members, will comply with the committee`s request. Now is that glass half full Jamie Raskin or do you believe that to be true?

RASKIN: Well, it`s glass half full but it`s based on probably more than 90 percent of the people we`ve been interested in talking to. Those people have come forward and voluntarily cooperated with the committee.

And look, it`s the whole basis of our legal and justice system which is that if people have relevant evidence to an investigation, they come forward and they testify about it. I mean our whole justice system collapses if that doesn`t take place.

So if a crime takes place either a major crime like a coup or an insurrection or other any other kind of crime, a bank robbery, a street mugging and someone is a witness to it, they have a legal duty to come and to testify. And if you think that your testimony could implicate you because you`re not just a witness but you`re a participant, you can invoke the Fifth Amendment privilege against self-incrimination, and our committee respects the Constitution, including the Fifth Amendment privilege against self-incrimination.

But those are really your only choices if you`ve got relevant evidence and the vast majority of people understand that. The vast majority of Americans understand that if they received a subpoena tomorrow from a court or from Congress, they would comply. So we just have a tiny minuscule part of the population that thinks somehow they skate above the law.

HANNITY: Do you expect -- let`s say they either voluntarily comply or are compelled to comply, do you expect to get new information from them or are you expecting them to verify information that you believe you already have?

RASKIN: Well, if they testify truthfully, which of course they`re legally bound to do, and if they`re sworn in then under the laws of perjury then we will receive a lot of new information and some of it might be exculpatory for them some of it might help them in terms of their public image and understanding of their role.

But as the chairman indicated in that little excerpt that you invoked, if they don`t come forward, we`re just going to release the information we`ve got, and of course then they`ll go back to their tired talking point of how this is a partisan-bipartisan investigation, including the former chair of the House Republican conference and so on.

But, look, if they -- if they`ve got information about what happened, this is a deadly serious investigation into an attempt to topple our form of government. We came very close to losing it all on January the 6th.

And I would hope that someone who swears an oath to uphold and defend the Constitution of the United States against all enemies foreign and domestic would have a sense of legal civic and patriotic duty to come forward and to give their testimony the way that the vast majority of people have and there, of course, I`m excluding people like Steve Bannon and Mark Meadows and this Scavino and Navarro.

VELSHI: It was -- I thought it was interesting what Mo Brooks talked about that the president -- former president of the United States has contacted him several times to I don`t know do what overturn the election and rescind the ratification. I don`t know what he`s asking Mo Brooks to do. I`m not quite sure what Mo Brooks is capable of doing. But Mo Brooks has asserted that they -- they want to hold or they were scheming involved trying to hold a special election for the presidency.

Have you uncovered whatever that plot is?

RASKIN: Well, Mo Brooks makes an essential point, Ali, because this is really a continuing effort to overthrow our system of government. Donald Trump has never conceded defeat to Joe Biden and his supporters like Mo Brooks are out there saying that Donald Trump is the rightful winner, and we`re very curious about what Mo Brooks is referring to when he talks about continuing efforts to get Congress to rescind the election. There, of course, is no provision in the U.S. Constitution for rescission of an election any more than there`s a provision for the military to seize the election machinery and re-run the election which was another plot they have.


Any more than there is justification for the vice president to step outside of his constitutional role and simply unilaterally reject electoral college votes cast by tens of millions of people.

So all of these are counterfeit efforts to replace our real constitutional order with something that would put Donald Trump back into office. And as you can see from Congressman Brooks`s statement, that effort continues.

VELSHI: Congressman, you know, I have a copy of the Mueller report. It`s bound and all of the lawyers who helped us interpret it over the months and months and months have all signed it for me, it`s like a yearbook. I`m hoping that`s not what happens with the January 6 committee, right? I know that that is your responsibility because you don`t have the wherewithal, the ability to change laws and fix the guardrails that are broken.

But what can we reasonably expect to happen? Because I`m very worried about the things that you come on and warn us about what we`re underway and I`m worried that -- what happens if nothing happens with all the information you have? What happens if your report falls in the woods?

RASKIN: Well, that can happen because it`s unthinkable that that would happen. We`re in a struggle for our democracy. This is the fight of our lives that we`re in. The autocrats are on the march all over the world. We see the ultimate destination of this kind of authoritarianism and violence and lying in Ukraine today, where Donald Trump`s bosom buddy Vladimir Putin who a number of my GOP colleagues continue to revere and idolize is engaged in daily war crimes against a sovereign nation where the people want nothing other than their freedom and their democracy.

And so, we understand that there`s a struggle to defend democracy all over the world, which is besieged from Moscow to Mar-a-Lago, with all of the autocrats and bullies and tyrants and kleptocrats and dictators getting together against democracy. So this set of hearings and the report that will follow is a message to the country because what we have under House Resolution 503 is a requirement as a committee that we determine the exact events of what took place, the causes behind them and then significantly what needs to be done in order to fortify our institutions, our constitutional processes and our values going forward so we`re not subject to further coups, insurrections and authoritarian attacks on our democracy.

VELSHI: And you`re satisfied that you`ll have an answer to that third part what needs to be done, steps that we can actually all take whether they`re as a government or in states to not ever have to go through this again?

RASKIN: Yes, and you will see some of that begin to surface in the hearings. You will see a lot more of it in the reports and there will be more action by the committee. We have operated in a truly bipartisan and truly unified way to try to live up to the very serious mandate that`s been imposed on us, and we take it seriously and we`re looking at everything that must be done to protect us going forward in the future because this century is turning out to be a very unstable one, where the autocrats, and the racists and the anti-Semites and the ultra nationalists are on the march against the Democratic peoples and governments of the world.

So we`re trying to look at this in a really serious way from the ground floor. Do we need shatterproof glass, in office buildings, in the Capitol, all the way through the Electoral Count Act, the Insurrection Act, the Electoral College, all of it. We are going to put these questions to the American people because we have to be very serious going forward if we`re going to continue to be a democratic society.

You know, Tocqueville said that in America, democracy is either shrinking and shriveling away or it`s growing and it`s expanding. And we`ve got to get our democracy back on the growth track.

VELSHI: We are on the wrong side of that equation. Thank you, sir.

Maryland Congressman Jamie Raskin, member of the January 6 committee. We appreciate your time as always, thank you.

We`ve got much more to come here tonight, including new developments in one of the investigations surrounding Donald Trump. Stay with us.



VELSHI: It`s more big news tonight on the widening investigation surrounding former President Donald Trump. Today, "The New York Times" reports that the Justice Department has opened a grand jury investigation into how classified White House documents ended up in Donald Trump`s Florida home. You may remember that earlier this year, the National Archives discovered that boxes of official White House records including sensitive and classified materials had somehow found their way to Trump`s private club and residence.

The National Archives referred that matter to the Justice Department who were reportedly planning an investigation into the matter. Now, that investigation appears to be underway.

According to "The New York Times," Justice Department prosecutors have already issued at least one subpoena to the National Archives and have begun making requests to interview people who worked in the Trump White House during the final days of his presidency. The Trump -- "The Times" also reports, quote, the investigation is focused on how the documents made their way to the residence, who boxed them up, whether anyone knew that classified materials were being improperly taken out of the White House and how they were ultimately stored in Mar-a-Lago, according to a person with knowledge of the matter, end quote.


The news of this investigation comes as Congress`s own investigation into the final days of the Trump presidency is also wrapping up. As I mentioned before, January 6 investigators have now subpoenaed five Republican members of Congress, including the Republican leader Kevin McCarthy, to testify about what they saw and discussed in the lead up to January 6th.

Joining us now to help us unplug all of this is the former United States attorney, the co-host of "The Sisters-in-Law" podcast, Joyce Vance.

Good evening to you, Joyce. Good to see you.


VELSHI: Let`s start with the Mar-a-Lago stuff. I`m old enough to remember the days when a federal investigation into the potential mishandling of classified information was enough to cost Hillary Clinton a chance at the presidency. How big a deal is this investigation into boxes of potentially classified material that were relocated to Mar-a-Lago?

VANCE: It seems to me that this is a big deal for a lot of different reasons. First off, this is an investigation nobody knows where it`s headed and whether or not there was intentional criminal misconduct, but one possibility is that the former president could be involved in something that`s criminal here. And so, this investigation we should read as a signal from Merrick Garland, probably an unintentional one but a signal nonetheless, that he is willing to pursue criminal cases that may involve the former president of the United States.

For people who thought that that was not an option for this Justice Department, I think this case gives them reason to reconsider those opinions. You know, it`s also a very serious matter just on its own. DOJ needs to figure out what was in those 15 boxes of documents, was there some sort of a leak? Was this classified information distributed in an improper way? And if so, who was responsible?

But the statute makes it a crime simply to remove classified information and to store it in a non-secure location. So there is criminal conduct involved here if someone knew what they were doing when they did this.

VELSHI: I want to talk about January 6. You just heard that I had a conversation with Jamie Raskin who seems confident that at some point these five Republican members of Congress who have been subpoenaed will show up for their depositions before the end of the month. Assuming they don`t, Jamie Raskin might just be being more positive than I -- than I am about these things. Let`s assume that they don`t. What happens? What does -- what should or can Congress do to enforce these subpoenas?

VANCE: I`m not sure that Congress really has to enforce these subpoenas, and to be honest, time is running a little bit close to go to DOJ and ask for prosecution because, of course, as you and I have discussed before, DOJ doesn`t get involved in cases with politicians who are actually on the ballot too close to an election. And all of these representatives will be on the ballot come November. So that may be a little bit of a long shot here.

But if I`m one of the people presenting the story of January to the American people in these committee hearings, I`m happy with or without this testimony. You know if I have it, that`s great. I hear these folks version. But if I don`t have it, I`m telling the story through staffers testimony and documents, and then I get to make sure the American people understand that these representatives, these elected officials weren`t willing to come and talk about a coup. They weren`t willing to give evidence.

You know, in a criminal case, prosecutors can`t tell jurors that a defendant declined to make a statement because that`s seen as being a powerful piece of evidence that a jury might use to assume that a defendant who didn`t make a statement was guilty. There`s no such prohibition in these sort of committee hearings and folks on the committee will be free to instruct people to make the logical inference from Congress from members of Congress who aren`t willing to come and talk about a coup attempt.

VELSHI: Joyce, always great to get clarity from you. We appreciate it. Former U.S. attorney, Joyce Vance, thanks for your time tonight.

VANCE: Thank you.

VELSHI: Well, up next, the efforts to right a wrong, to release a wrongly convicted man from death row and the politicians who were standing in the way.



VELSHI: In 1995, a police officer, Deputy Sheriff William Hardy, was shot and killed while off duty working as a security guard at a hotel in Birmingham, Alabama. Police were determined to crack this case apparently at any cost. They arrested five men in connection to the murder. The 19 -- in 1988, they wound up convicting this man, Toforest Johnson. He was sentenced to death and he`s been on death row for more than 20 years.

But he says he did not do it, that he did not commit this crime and he`s been outspoken about his innocence for all these years while sitting on death row. Now, more than 20 years later, some of the former judges, prosecutors and the jurors who convicted him are agreeing with him. They also say he did not do it or at least he deserves another chance to defend himself.

The story of how this happened shows a multi-engine failure in our criminal justice system, one that we have seen too many times before.


In Mississippi, with Curtis Flowers and Sabrina Smith, and so many others across the 27 states with the death penalty on the books.

Here`s what happened in Alabama in the case of Toforest Johnson: First, when the police arrested five men suspected of shooting the off-duty police officer in 1995, ballistics showed that only one gun was used in the shooting. So they could not have all pulled the trigger. The police decided to let three of the five men they arrested go, but they kept Toforest Johnson and one other suspect, a man named Adragus Ford and charged them both for the same murder.

Now, that happened despite the fact that both men had alibi witnesses who could testify to the fact that they were at a nightclub on the other side of Birmingham when the shooting happened. Still, both men were charged and tried separately. The prosecution didn`t try to argue that the men committed the crime together, they couldn`t decide which of the men did it, so they tried two different theories of the case in two separate trials, claiming that they had proof beyond a reasonable doubt that, I don`t know, both of them did it, either of them did it, one of them did it. They didn`t know.

So they let the juries decide. That happened based on the word of one unreliable witness, 15-year-old Yolanda Chambers. According to "The Washington Post," even the prosecutors in this case have admitted that since the 1995 murder, Chambers, quote, had told more than lies about who was involved and what she knew. That is the person who was the primary witness in the case against Toforest Johnson`s friend, and she`s the one who named Johnson as the man who pulled the trigger.

She came forward as a potential witness, only after the governor`s office announced a reward for anyone who gave information leading to an arrest. Her mother told police she had information about the murder but she did not. At that point, she was in a position of either providing information or doing jail time for lying about it. She later reported feeling pressured to give some kind of information.

Before one of Toforest Johnson`s criminal trials, Chambers even admitted that she had lied. She said she had done so because of that pressure. Quote: They was yelling at me, you know. Don`t you know you can go to jail for this and that`s all I was thinking. That`s all I had put in my mind, jail. I don`t want to go.

So after they was putting all the pressure on me, I went on and said, I was there. Maybe if I go on and say I was there, maybe all the threats and everything will end, end quote.

Ford`s lawyer said, quote, Chambers` accusations should have been painfully and obviously false. But apparently, they were not. Both men went to trial for capital murder. Just ahead of Ford`s trial, the state tried to offer him immunity if he would say that Toforest Johnson was the one who murdered the officer. He refused. He told his attorney, quote, I see where they won`t charge me if I say he did it. If that were the truth, I would say it in a heartbeat. But I am not lying for anybody, including the cops.

Adragus Ford`s trial ended in a hung jury and that favored acquittal. Johnson`s trial went on and that story of the witness who told 300 lies wasn`t even the worst of it. Johnson was eventually sentenced to death after a laughably poor case.

As a former chief justice of the state Supreme Court put it in an op-ed, quote, there was no physical evidence, no eyewitness testimony, no police confession. The state`s case relied entirely on a woman who said she overheard a three-way jail phone call in which a man who referred to himself as Toforest admitted to the crime. The woman had never met Mr. Johnson and she didn`t know his voice, but her testimony was enough for the jury to convict.

It turns out the woman was paid $5,000 for her testimony after the trial, a fact which was never disclosed to Mr. Johnson or his lawyers. In fact, his lawyers did not find out until 2003, and did not have proof until 2019 when the state turned over this, a copy of the check and a form signed by the judge authorizing the payment of $5,000.

Johnson`s legal representation worked against him as well. According to "The Washington Post", Johnson`s attorney who admitted in a court filing that he lacked the necessary experience for a capital case. The lawyer wrote: Defendant`s attorney does not have the expertise in criminal investigation work to investigate the facts and interview the witnesses surrounding the alleged crime with which the defendant is charged. Defendant`s attorney has no formal training in criminal investigation, nor do they have the capabilities in time to interview all the potential witnesses and conduct all the investigation necessary and essential to provide the defendant with an adequate defense, end quote.


No experience, no training, no time to investigate, a trifecta of trial disaster.

When the court later agreed to give him a private investigator they only provided funds for someone -- well, someone no one would want. Johnson`s current lawyers described this PI as, quote, a brain damaged, alcoholic, racist, suicidal homeless man who had already been fired from at least one capital case for incompetence, had been operating without a business license for at least five years and could barely manage his own day-to-day affairs, end quote. Perfect guy for the job.

Now, that all this information about this botched case has come to light, numerous people want justice for Toforest. That aforementioned former chief justice of the Alabama Supreme Court, he`s come out against the case. He asks, quote, why is Toforest Johnson still on Alabama`s death row. Over time, the state`s case has fallen apart and there is now substantial evidence that Mr. Johnson is innocent.

The district attorney in Birmingham, the lead prosecutor for Mr. Johnson`s case support a new trial. The former Alabama attorney general has also come out against Johnson`s conviction in an op-ed for "The Washington Post", where he writes, as long -- as a lifelong defender of the death penalty, I do not lightly say what follows, an innocent man is trapped on Alabama`s death row.

Three jurors who voted to convict Johnson have also called for the Jefferson County Circuit Court to throw out Johnson`s conviction. They publicly expressed disappointment in the trial. One said, quote, when you look back at all the stuff the jury did not know, I feel like we were used like pawns in a chess game, not even knowing we were being used. It`s all very disturbing to read all of this now.

Johnson`s defense now has ten witnesses who put him in a different part of town at the time of the murder, and yet justice isn`t any closer. This week, the Alabama Court of Criminal Appeals rejected Johnson`s claim that prosecutors committed misconduct and so the court upheld his conviction.

Despite that setback, Johnson still stands a chance at an entirely new trial, but Alabama`s governor and attorney general could easily end this all right now. The governor could pardon Johnson. The attorney general could drop the case, but so far, they have not. Why? What`s the holdup?

The reporter who helped bring this case to national attention joins us after the break.



VELSHI: One of the reasons we know Toforest Johnson`s name and his story is that in a 2019 "Washington Post" column, they wrote an opinion essay titled "An Illusion of Justice," laying out in extensive detail the facts of the case that sent Mr. Johnson to Alabama`s death row, where he has now spent half of his life.

Quote: This is a story about a wrongful conviction. It`s about witnesses who were rewarded for lies and threatened for telling the truth. It`s about over overly aggressive law enforcement, a supine judiciary and almost comically ineffective representation and how all of those things put a man on death row who nearly everyone now agrees is innocent. Even the man who prosecuted him now doubts his guilt. It`s a story about the lives ruined along the way and it`s about the murder of a much like deputy that because of all of this remains unsolved.

All of those aspects of the story were true three years ago and given a setback to Mr. Johnson`s case. This week when a state appeals court upheld his conviction, they remain true today.

The case is far from over though, the district attorney is trying to get a new trial. Alabama`s governor could pardon the Johnson and the attorney general could drop the case.

Joining us now is Radley Balko. He`s "The Washington Post" columnist who wrote that piece for "The Washington Post" and helped Johnson`s case garner national attention.

Mr. Balko, thank you for being here tonight and thank you for bringing the story to the nation`s attention.

How did you get started on this? What first drew you to Toforest Johnson`s case given that there are many people on death row who claim to not be there for the right reasons?

RADLEY BALKO, CRIMINAL JUSTICE COLUMNIST, THE WASHINGTON POST: So, part of my beat is the criminal justice system and part of that is reaching out to defense attorneys and keeping in regular touch with a few of them throughout the country.

And so a couple attorneys that I had interviewed or corresponded with on other cases reached out to me, and one thing I found over the course of my career covering this feed is that, you know, defense attorneys handle a lot of cases and a lot of people that they represent are guilty, you know, even though the system can be unfair, they tend to only reach out to a journalist when they`re really, really mad about the case and when they`re really certain that the person is innocent.

And so, as I started doing more and more reporting on the case and we`re talking to the attorneys who were involved, you know, it just became clearer and clearer that this was a real injustice that had gone unaddressed.

VELSHI: So, all of the stuff that I tried to outline, things that you wrote about, that show all of the things that seem to be wrong about having convicted Mr. Johnson, it all became very narrow this week because the Alabama Court of Appeals ruled against Mr. Johnson`s claim of prosecutorial misconduct because of the money paid to a key witness in his trial.


That seems to be one little piece of this whole thing, but for Mr. Johnson, it`s a complete setback. What is his best chance for getting justice when so many little things went wrong to get him the death penalty?

BALKO: See, this is -- this is one of the huge problems with our system. So once a jury returns a guilty verdict to the case, the system switches from a presumption of innocence to prioritizing the preserving the finality of the verdict, and the idea here is that we want to preserve jury verdicts, particularly guilty verdicts, because if we let, we -- you know, we start overturning them left and right at the first sign of, you know, a bad trial or an unfair trial, that it will sort of erode the integrity of the system.

And they wrote in the column, you know, that is that`s an illusion of integrity. That`s not actual integrity, right? Actual integrity is correcting your mistakes, addressing your mistakes, fixing these injustices. But the courts make it extremely difficult for people uh who are innocent to bring evidence.

The -- there`s a phase in your trial or in your case called post-conviction where this is when you get access to the police files and prosecutor`s files and this is where you`re most likely to find evidence of your -- of your innocence or that could establish your innocence. It`s most likely when you`re likely to find police misconduct or prosecutorial misconduct.

But our system also means when you get to post conviction, that is the time when the courts are least likely to reopen your case. So as soon as you get access to all of this evidence that that could potentially free you, the courts make it almost impossible for you to get back in. And when they do, it`s piecemeal.

It`s one issue at a time and they tend not to sort of you know once they`ve ruled on an issue, they`re not going to -- it`s very difficult to get them to go back and look at it later. But I do think what you said is very important. I mean, right now, he is caught in this system and the Alabama courts are sort of limited by case law and they`re limited by these post- conviction rules about how they have to sort of listen to and consider these evidence. I don`t think that excuses the ruling, but it is it does sort of explain it.

The Alabama attorney general and the Alabama governor don`t have those excuses. They, as you said, they could end this case tomorrow. They could free this guy and Mr. Johnson and end this injustice tomorrow. And why they haven`t after, you know, even before my article, there`s been publicity about this case.

Why it`s been three years. There`s just a sense of urgency and I think that`s really what`s unforgivable here.

VELSHI: Yeah, they`ve got the same evidence that you know about.

Bradley, thanks very much for reporting on this case and keeping it in the front -- forefront for us. Radley Balko is a criminal justice columnist for "The Washington Post", we appreciate you making time to be with us tonight.

BALKO: Thanks.

VELSHI: Our pleasure.

Our last story, just ahead tonight. Stay with us.



VELSHI: Thousands filled the streets of Ramallah, in the occupied West Bank today where the Palestinian presidential compound, a state-run memorial service, was being held for Shireen Abu Akleh. She was a longtime correspondent for Al Jazeera, a Palestinian-American woman. And yesterday, she was shot and killed while reporting on a raid by Israeli forces in the town of Jenin, in the occupied West Bank.

She died after being shot in the head, though she was wearing a helmet. The producer was shot and injured as well. They were wearing it clearly labeled press jackets. Both were veteran journalists, and where they`re doing their jobs, bearing witness for those of us who are not there.

The situation in the occupied West Bank has been heating up for a while now. Unfortunately, for the past five years or so, the United States has been largely absent from the conflict but the violence has been escalating.

One of the great difficulties in this conflict which Palestinians argue goes back to the 1948 exodus of some 700,000 Arabs from their homes when the state of Israel was founded is that it is sometimes hard to parse who is telling the truth from what is actually going on on the ground, which is why journalists like Shireen Abu Akleh matter. They are there in the thick of it, exposing themselves to very obvious danger, bearing witness without power can be held to account, and hopefully one day this fight, which has gone on for far too long may end.

Al Jazeera and other Western reporters on the scene quickly attributed Abu Akleh`s shooting to the Israeli forces that were carrying out the raid. Israel denied the attribution, saying initially they believe she was shot by Palestinians. The prime minister of Israel himself then circulated a clip from this video. Israel`s prime minister saying, quote, there is a good chance that armed Palestinians who fired wildly are the ones who led to the unfortunate death of the journalist.

Here is the thing, B`Tselem, an Israeli human rights organization that documents human rights violations in the occupied West Bank geolocated the video. You can see the location of the shooter in the video. It is on the lower right of your screen where the text is. And the location where Shireen Abu Akleh was shot is in the upper left.

This video now which is sped up is of B`Tselem walking between the two points -- they go down an alley, around the corner, down another block, around another corner, and then down another very long road. B`Tselem says this demonstrates the shooting could not possibly be the gun fire that hit Shireen Abu Akleh and her colleague.

The Israeli government has since backtracked on his earlier statements, and the Israel Defense Force official told "The Washington Post" today that Israel is now investigating the possibility that one of its own soldiers killed Shireen Abu Akleh. And Israel`s defense minister conceded late last night, the shot that killed her may have come from the Israeli side.

Fights over attribution of violence are by no means new, but this video in the history is really blaming of a killing that may have been caused by its own military on someone else without actually having nailed that information down it`s a terrible way for a nation-state to react to a journalist being killed in a conflict zone, their conflict zone.

Shireen Abu Akleh was 51 years old. She becomes the 17th journalist to be killed this year. Many of them covering conflicts. She will be buried tomorrow in Jerusalem, next to her mother.

That does it for us tonight. We`ll see you again tomorrow.


Good evening, my friend.