A Matter of Life and Death

Richard A. Johnston, Partner at WilmerHale, and WilmerHale Pro Bono Attorney at HLS Center for Health Law and Policy Innovation

Via Massachusetts Lawyers Weekly

Richard A. Johnston has had a long and fruitful career focusing on the litigation and arbitration of complex business disputes.

Despite his success, however, it’s safe to say none of his previous legal victories ever resulted in a courtroom standing ovation or front-page story in The New York Times.

Johnston, of WilmerHale in Boston, owes those recent accomplishments to his pro bono work, which recently helped exonerate Henry Lee McCollum, an inmate facing a death sentence for the 1983 rape and murder of a North Carolina child.

WilmerHale got involved in the case in 1994, and for 20 years the firm’s efforts were focused on sparing McCollum’s life. When Johnston succeeded retired colleague Harry T. Daniels as the lead partner on the case two years ago, the firm and its co-counsel, the Center for Death Penalty Litigation, set their sights on a clemency petition (which a former governor declined to grant) and motions arguing that, as a matter of law, the death penalty shouldn’t be imposed on McCollum because he is intellectually disabled.

McCollum’s team was preparing for an evidentiary hearing on the question of the defendant’s mental disability when the North Carolina Innocence Inquiry Commission unearthed exonerating DNA evidence. The emphasis of the hearing quickly shifted and concluded with a Superior Court judge in North Carolina ordering the release of McCollum and his half-brother, Leon Brown, who was serving a life sentence for the same crime, earlier this month.

The commission is an independent state agency with broad subpoena powers that was able to put its hands on evidence long withheld from defense lawyers, including police evidence gathered in the initial investigation.

DNA tests linked a cigarette found on the scene to Roscoe Artis, who is in prison for a life sentence for the rape and murder of an 18-year-old girl that took place just weeks after the crime for which McCollum and Brown were wrongfully convicted.

“It wasn’t until the hearing itself that we learned [the district attorney] definitely was not going to challenge the innocence and would go along with a motion that all charges should be dismissed with prejudice,” Johnston says. “It was quiet an astounding day. There were many family members, press, ex-lawyers and judges there to see if justice would be done.”

Johnston says hearing the judge read his order at the end of the day was “an electric experience.”

“I have never had any such feeling in a courtroom ever. It was almost just a shiver,” he recalls. “When the order was read, the crowd just burst into spontaneous applause.” Johnston says the experience further affirmed the decision he made 30 years ago to join WilmerHale predecessor Hale & Dorr “because they had a reputation above all others in Boston for doing public service and pro bono work.”

“I went to law school because I thought the law was the best way to try to make society a better place,” says Johnston, who spends about 10 percent of his time on pro bono matters. “When I elected to go to a firm, I wanted to go to a firm that I thought would give me the opportunity to do pro bono as well as regular commercial cases. …I didn’t know how [McCollum’s case] would turn out, but I certainly thought it was worth taking across the finish line.”

While the stakes won’t always be life-or-death, Johnston hopes his experience will encourage other lawyers to devote more time to pro bono matters. He also hopes other states emulate the first-of-its-kind North Carolina Innocence Inquiry Commission.

“This is one of those magnificent examples of where the system ultimately corrects itself. But it doesn’t correct itself on its own; it corrects itself because of the hard work of many people,” Johnston says. “The fact that all of these parts of the system can come together along with the judge was a great lesson in how things can work if everybody labors at it.”

In addition to Johnston and Daniels, former WilmerHale partner James E. Coleman Jr. (now at Duke University School of Law), London partner Steven P. Finizio, and Boston associates Andrew S. Dulberg and Jared B. Cohen worked on the McCollum’s case.

                                                                                                        – Brandon Gee