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IP litigation may be his main bag of tricks, but for Cravath Swaine litigator David Herrington, saving a man from Tennessee’s death row has become something the fifth year Big Law associate has become passionate about. And he’s just achieved another step towards moving his client off death row.

IP litigation may be his main bag of tricks, but for Cravath Swaine litigator David Herrington, saving a man from Tennessee's death row has become something the fifth year Big Law associate has become passionate about.  And he's just achieved another step towards moving his client off death row. 4

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 (pictured). 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.

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