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
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
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
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
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
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
"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
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
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."