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December 15, 2011 1:47 PM

Cleary Team One Step Closer to Winning Ex-Death Row Inmate's Freedom

Posted by Julie Triedman

Herrington_David_HRc5x7[2]In a pro bono victory for Cleary Gottlieb Steen & Hamilton lawyers, a Tennessee appeals court has vacated the 1985 felony murder conviction of former death row inmate Erskine Johnson and remanded his case for a new trial. 

The decision—issued on December 9 by the Tennessee Criminal Appeals Court in Jackson—was in large part the product of new evidence turned up by a Cleary team that over the past 15 years has spent at least 15,000 hours on the case while getting contributions from more than 25 of the firm's lawyers.

The ruling is particularly sweet for Cleary counsel David Herrington (above). The 48-year-old IP litigation specialist presented the oral argument that resulted in the December 9 decision and has been involved in the matter since he was a fifth-year associate, when Cleary first began advocating on Johnson's behalf.

Johnson, 53, remains in prison while state attorney general Robert Cooper, Jr., decides whether to retry him, which the Shelby County prosecutor has asked him to do, according to local news reports. Cooper has at least 30 days to file a retrial motion, while Johnson's legal team hopes to get Johnson released from custody as soon as possible.

Herrington says Johnson "was in a state of shock" when he called him at the Riverbend Maximum Security Institution to tell him about the decision. "When he could absorb the news," says Herrington,"he was completely elated."

Johnson's legal odyssey has been filled with twists and turns. A resident of St. Louis, he was charged with aggravated murder in connection with the 1983 shooting death of Memphis grocery store manager Joe Belenchia during a robbery.

Despite his pleas of innocence, Johnson—who is known today as Ndume Olatushani—was convicted and sentenced to death in 1985 based on the testimony of a store customer who identified him as Belenchia's killer, though he said he was uncertain about the identificaiton, as well as another witness who said she had been told that Johnson murdered the store manager.

Cleary entered the case in 1995 after receiving a referral from the NAACP's capital punishment unit and the New York City Bar Association, Herrington says. (Prior to that, according to Herrington, Johnson was incarcerated in California on an unrelated charge.) Herrington and Cleary partners David Brodsky and John Blackman flew to Nashville, met with Johnson on death row, then made their way to Memphis to begin their investigation.  

Herrington recalls that the Cleary team got its first break while poring over prosecution and police records. Those records, he says, showed that prosecutors had withheld information from Johnson that supported his claims of innocence.

Among other things, Herrington says, the Cleary lawyers turned up testimony from a store customer who had identified a member of the local "Brown Gang," not Johnson, as the gunman, as well as testimony from a teenager who had told police that he saw two members of the Brown Gang changing the license plate on the alleged getaway car just before the robbery occurred. The Cleary lawyers also learned that police knew the car in question had been stolen from the St. Louis airport, and that members of the gang often stole cars there and brought them to Memphis.

The potentially exculpatory evidence gave the Cleary team what it needed to seek to overturn Johnson's conviction on so-called Brady grounds. The trial court rejected the claim as insufficiently compelling, but in 1999, the Tennessee appeals court reversed the death penalty sentence on another ground: that the state had withheld a police crime scene report establishing that a stray bullet that grazed a customer during the shooting—the "aggravated circumstance" that had initially opened the door to the death penalty—could not have come from the same direction as the bullet that killed the shopkeeper.

The finding, which an expert hired by Cleary confirmed, suggested that two gunmen had been involved in the robbery. The state appealed the ruling reversing the death penalty, and the Tennessee Supreme Court decided to review the matter.

"That scared the hell out of us," Herrington says. "It appeared that they wanted to reverse the reversal." Those fears proved to be unfounded. In 2001, the state's highest court affirmed the appeals court decision.

Nonetheless, Johnson remained on death row until 2004, when the state finally dropped its bid for a second sentencing trial. 

Cleary's work on the case wasn't done. The firm's investigators tracked down a new witness being held in a Kentucky prison who undercut the credibility of the prosecution's key witness at trial. The Kentucky convict—a Brown Gang associate—said that the prosecution witness had close ties to a Brown Gang member who had herself been implicated in the robbery—giving the witness a motive to testify dishonestly.

Says Herrington:  "For us, this was mind-blowing."

By that point, however, there was only one way to challenge Johnson's original murder conviction: the rarely used "coram nobis" petition. Such a petition comes into play when new evidence surfaces that is so compelling that it could completely undermine the trial verdict. The testimony by the Brown Gang associate provided the basis for that petition, Herrington says.

The trial court rejected the Cleary coram nobis petition as time-barred, but the firm's lawyers appealed the decision and won. The petition went back to the trial court, which rejected it again, this time for  not being compelling enough. Cleary appealed, with Herrington making his oral argument on Johnson's behalf in July before a packed courtroom.

In September, while the appeals court's decision was pending, the Cleary lawyers flew to Tennessee for Johnson's first parole hearing, where they presented evidence of his good character. For Herrington, the trip was the latest in what he estimates have been about a dozen he has made over the years to visit Johnson, whom he describes as "a wonderful guy."

At the hearing, Herrington says, prison guards were among those who submitted letters in support of Johnson, telling the parole board that he “was a calming presence; that he was able to be a peacemaker, and made death row a safer place.”

Johnson is still waiting for the parole board to vote on his application. It's unclear now whether that vote will come given the appeals court decision vacating his conviction.

"It's the ultimately irony that he might have gotten parole very soon," says Herrington. "He shouldn't serve more time as a result of his conviction being overturned."

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