A 30-year path to freedom

Issue November 2014 By Mike Vigneux

MBA member's pro bono work overturns wrongful death row conviction

Sept. 2, 2014, is a day that attorney Richard A. Johnston will never forget. While gripping the arm of his client, Henry Lee McCollum, in a rural North Carolina courtroom, Johnston listened as a judge read an order which overturned the conviction of McCollum and his half brother Leon Brown for the rape and murder of a child in 1983. McCollum, who had been sentenced to death, was released from prison the next day after serving 31 years for a crime he did not commit.

In a distinguished, award-winning legal career that has spanned 37 years and countless hours on pro bono cases, the raw emotion of such a dramatic moment was something that Johnston, a partner at WilmerHale, had never experienced.

"I have never had the same sort of feeling in a courtroom as I did when the judge started to read his verdict," said Johnston. "I had shivers down my entire body, even though I knew at that point what the judge was going to say. But it still went through me like I had no idea what was coming."

It's probably safe to say that given the tumultuous and frustrating history of his case, McCollum, like Johnston, wasn't exactly ready for what he heard that day after spending more than three decades behind bars as an innocent man. Someone even had to show him how to use a modern seatbelt when he got in a car to begin his new life.

McCollum, a 50-year-old mentally disabled African-American, was a victim of circumstance who unfortunately found himself at the wrong place at the wrong time when he was just 19. A native of Jersey City, New Jersey, McCollum went to North Carolina in 1983 to visit his mother and relatives. Just days before heading back home, he and Brown were arrested and charged with the rape and murder of 11-year-old Sabrina Buie. Although the brothers initially confessed to the crime, the confession was quickly repudiated and was later proved to have been coerced.

A challenging case

Johnston's firm got involved in the case on a pro bono basis through its Washington, D.C., office in 1995, nine years prior to the merger of Hale and Dorr with Wilmer, Cutler & Pickering. Harry Daniels, Johnston's former Boston partner, was the lead attorney on the case for WilmerHale after the merger until his retirement in 2011-2012. Johnston has managed the case since then.

The case had a lengthy procedural history, even before Hale and Dorr became involved. When the firm first came on board to represent McCollum, he had already been tried once, was found guilty and was sentenced to death. That initial decision was appealed and the death penalty was reversed. McCollum was then granted a new trial on the basis that it was not fair to try both he and his brother together. Once again, McCollum lost his case and was sentenced to death. That decision was also appealed and a civic petition reached the Supreme Court, which denied a request to review the case in 1994. McCollum was once again on death row when the firm took the case in 1995.

One of the first things the firm did was to draft a motion for appropriate relief, a post-conviction motion that said McCollum was coerced into a confession, was provided ineffective assistance of counsel and was mentally disabled and shouldn't be sentenced to death. The motion also stated that there wasn't sufficient evidence of McCollum's guilt in the case.

In 2002, the Supreme Court ruled in Atkins v. Virginia that executing mentally disabled individuals violates the eighth amendment's ban on cruel and unusual punishment. But individual states still defined who was mentally disabled. North Carolina also passed the Racial Justice Act in 2009, which gave death row inmates the opportunity to change their sentences if they could prove that racial discrimination had been a factor in their cases. Based on these two developments, the firm began pushing to revoke McCollum's death sentence.

The firm also filed a motion to have DNA evidence taken as it was not available at the time of McCollum's previous two trials. Some of the initial results came back in 2005 and McCollum's DNA was not on the particular pieces of evidence that were tested. While the evidence found did not contain McCollum's DNA, it was not enough for exoneration as the evidence did not implicate another person.

New agency offers hope

A key period in McCollum's case came in 2006 with the creation of a state agency known as the North Carolina Innocence Inquiry Commission. Established by the state's General Assembly, the commission investigates and evaluates post-conviction claims of factual innocence. Composed of eight members selected by the chief justice of the North Carolina Supreme Court and the chief judge of the North Carolina Court of Appeals, this innovative commission is the first of its kind in the nation.

The commission investigates post-conviction innocence claims first on a preliminary basis to determine if the case warrants further investigation. If enough evidence is gathered, the case is taken for full investigation and can be presented to an innocence tribunal for a trial outside of the court system. A person exonerated by this process is declared innocent and cannot be retried for the same crime. However, if a person loses, all pending court motions are wiped out.

An initial innocence claim concerning Brown, McCollum's half brother, was submitted to the commission and they began investigating the case. The WilmerHale team heard little until July 2014, when new DNA evidence provided a major shift in the case. DNA found on a cigarette at the crime scene was linked to Roscoe Artis, meaning another person could be identified as the perpetrator. Artis had been convicted of an almost identical crime one month later, back in 1983, in the same North Carolina town as the Buie murder.

Freedom at last

When the commission presented this new evidence to the Center for Death Penalty Litigation (CDPL) and the co-counsel for WilmerHale in North Carolina, the gears were switched from working to eliminate McCollum's death penalty sentence to preparing for a hearing on innocence. The hearing was scheduled for Sept. 2.

At the hearing, Robeson County District Attorney Johnson Britt expressed to the judge that he was not going to take issue with the new evidence. The defense team provided four hours of testimony from the commission and then rested. In his closing argument, Britt said that the new evidence was compelling and he did not have the evidence to retry the two brothers nor did he object to the dismissal of the charges. Superior Court Judge Doug Sasser then read an order that entitled McCollum and Brown to have their convictions overturned by virtue of the new DNA evidence. After 31 long years, McCollum and his brother were finally free men.

"In my practice which is mostly business litigation and arbitration, you don't usually get the results right there in the courtroom," said Johnston. "The magnitude of getting somebody released who'd been in jail for 30 years unjustly just overwhelmed any other thing. There's no doubt that it will go down as the most memorable case I've had. The impact on Mr. McCollum's life has just been so dramatic."

It was an amazing moment that featured a sea of emotions not only for Johnston and the defense team but certainly for McCollum, who had always been insistent on his innocence from day one. After all the trials and motions, a just result had finally been delivered.

"At first he was still a little bit shell shocked because he'd been waiting 30 years for this day," said Johnston, describing McCollum's reaction in the courtroom.

Upon his release from prison the following day, McCollum got to hug his family members, breathe some free air for the first time in three decades and sit in his own chair. An avid fan of basketball, he plans to take in a game as soon as he gets the chance. After so many losses, he is finally in the win column.

A team effort

Johnston credits the success of the McCollum case to working with a talented team of attorneys and investigators. WilmerHale has devoted nearly 20 years of pro bono service to the case through the work of approximately 12 attorneys, including associate Jared Cohen and former associate Drew Dahlberg. Johnston made four trips to North Carolina over the last two years to meet with McCollum and the CDPL, his co-counsel. Ken Rose, a graduate of Boston University Law School, and Vernetta Alston, both attorneys for the CDPL, were instrumental to the team's success as were the staff at the North Carolina Innocence Inquiry Commission who uncovered the key piece of evidence which ultimately led to the dismissal of the charges.

Cohen and Dahlberg also made trips to North Carolina for this case, often into challenging, rustic surroundings where the crime had been committed more than 30 years ago. Trying to track down witnesses and other individuals related to a crime that occurred in 1983 was often a daunting task.

"Drew was chased away by mad dogs on deserted roads in very rural towns," said Johnston.

Pro bono: A way of life

Over the course of his career at WilmerHale, Johnston has worked between 50 and 100 pro bono cases, some criminal with most being civil. He has also worked two pro bono cases in Africa. A member of the Massachusetts Bar Association since 1995, he is a former member of the Access to Justice Section Council and currently chairs the Joint Bar Committee. He earned the Great Friend of Justice Award from the Massachusetts Bar Foundation in 2004.

"I've worked with Richard for many years on the judicial selection process and he is one of the most even-keeled and well-respected on the joint bar committee," said MBA Chief Legal Counsel and Chief Operating Officer Martin W. Healy. "He truly is a lawyer's lawyer."

At WilmerHale, pro bono work is common with a suggestion that all attorneys devote at least 20 hours per year to pro bono cases. In the late 1980s the firm was one of the early subscribers to the American Bar Association's Pro Bono Challenge, which asks large firms to devote five percent of their hours to pro bono. Johnston chose to work at the firm in part because it had such a great reputation for public service cases and pro bono cases. The McCollum case is one of four death penalty cases WilmerHale has taken on during the last decade. In 2009 the firm also had a wrongful murder conviction overturned in New York for pro bono client Dewey Bozella who was imprisoned in 1977.

"I went to law school because I hoped that I could use the law to accomplish social change in some way," said Johnston. "This is the kind of case which is the epitome of what lawyers can do to make things right in society."

Of all the legal work Johnston has done, pro bono or otherwise, there is no doubt that the McCollum case will resonate with him for the rest of his life.

"Certainly over the years cases which I've had on the pro bono side have had a very positive impact on certain segments of the population," said Johnston. "But nothing has been quite so mind-blowing as this case."