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Note: Read more about the case and verdict in the News & Observer and The New York Times.

Litigators of the Week: The Hogan Lovells Team That Scored the Largest Wrongful Conviction Verdict Ever for 2 N.C. Men

Des Hogan, Liz Lockwood, and David Maxwell of Hogan Lovells led a team that won a $75 million verdict for Henry McCollum and Leon Brown, brothers who were wrongfully convicted, sentenced to death, and spent 31 years in prison for a crime they didn’t commit.

By Ross Todd | May 21, 2021 at 07:30 AM

Late last week a federal jury in Raleigh, North Carolina, awarded Henry McCollum and Leon Brown, half-brothers who served 31 years in prison after being coerced into confessing to a murder they didn’t commit, $75 million. The verdict, which included $1 million in compensatory damages for each year McCollum and Brown served, and $13 million in punitive dames, was the largest ever handed down in a wrongful conviction case in the U.S.

Their lawyers, a Hogan Lovells team led by Des Hogan, Liz Lockwood and David Maxwell, are this week’s Litigators of the Week. The Litigation Daily recently caught up with Hogan, the head of the firm’s global litigation, arbitration, and employment practice, about the firm’s work on the case.

Litigation Daily: Who were your clients and what was at stake?

Des Hogan: Our clients are Henry McCollum and Leon Brown, two intellectually disabled brothers who spent 31 years in prison for a crime they did not commit, as proven by DNA evidence. In 2014, Henry and Leon were released from prison based on DNA evidence proving that a serial rapist and murderer was the real perpetrator of the crime. But before this trial, there had never been a finding about the blatant police misconduct that led to Henry and Leon being locked away wrongfully for three-plus decades.

At stake were three primary things: (1) asking a jury to correct a 30-plus year grave injustice; (2) asking a jury to hold accountable the law enforcement officers who coerced Henry and Leon’s false confessions and then actively buried or ignored the evidence that would have exonerated the brothers; and (3) asking a jury to do the right thing by providing compensation for Henry and Leon so that—after having lived in Hell for more than 30 years—the brothers would not have to spend the rest of their lives in poverty.

How did you and Hogan Lovells get brought into this matter?

Henry’s guardian, Raymond Tarlton, brought us into this case in 2018. Our firm, and specifically Cate Stetson, who co-directs the firm’s appellate practice, and I have worked numerous innocence and other criminal justice cases over the years. Based on the work we have done in the past, Raymond contacted us and asked us to take on the matter. Raymond himself had just been appointed as guardian in order to protect Henry from an unscrupulous lawyer. Raymond asked Cate to handle the then-pending qualified immunity appeal in the Fourth Circuit (which she led to victory in 2019), and asked me to handle the trial. We were happy to say yes and it has been an honor of our careers to handle this matter together with our great team.

Who all was on your team and how did you divide the work?

There was a team of more than a dozen people who worked on the matter. The core team standing up at trial were Liz Lockwood and David Maxwell of Hogan Lovells, our great local counsel, Elliot Abrams of Cheshire Parker, and me. The four of us tried the case together. We divided it this way:

I handled the jury selection, opening, closing, arguing motions, and the first witness for each side. Specifically, I put on our first witness, the 30-year prosecutor (Johnson Britt) who in 2014 was a driving force behind Henry and Leon being pardoned by the Governor. In his career of more than 10,000 prosecutions, he has never supported any other innocence claim, which made his support here powerful for the jury. I crossed the first defense witness, defendant Leroy Allen of the State Bureau of Investigation. He struggled on cross examination about the coerced confessions and subsequent burying of exonerating information.

David Maxwell put on several witnesses, including our police practices expert—who spent 25 years in the FBI, training thousands of federal and state agents in investigations—and who testified about the myriad mistakes made by law enforcement. The other witnesses he examined were the world’s leading false confession expert, and several witnesses who supported our suppression claims.

Liz Lockwood examined Sharon Stellato, the North Carolina Innocence Commission investigator who finally did the type of comprehensive investigation that the police should have undertaken 30+ years earlier. Liz also drove our damages case, examining witnesses from death row and experts on the trauma suffered by Henry and Leon, eliciting heart-wrenching testimony about how Henry and Leon were victimized.

And Elliot Abrams, our great Raleigh counsel, examined Henry and Leon with a deeply compassionate touch. He also cross examined another one of the defendants and their purported police practices expert, who testified non-credibly that he has never in his testifying career ever seen any evidence that any police officer has ever done anything wrong.

We were supported by a tremendous team, including Cate Stetson (who remained a key leader in the case after the appeal), a team of associates (Jim Clayton, Jimmy McEntee, Joe Cavanaugh, Harrison Kilgore, and Alexandria Reid), and our star paralegal, Ashley Johnson. We worked seamlessly together to put on the evidence, research the legal issues, and workshop the strategy after each trial day. These team members were key to our clients’ win.

How much time and effort has the firm put into representing Mr. McCollum and Mr. Brown?

While we have not yet quantified the exact number of hours, we certainly have spent multiple thousands of hours pursuing Henry’s and Leon’s claims. The firm has never hesitated to pour attorney hours and other resources into this case. This case simply is consistent with our core beliefs and the firm’s Advancing Racial Justice initiative. We invested time and resources to investigate the claims, review a voluminous discovery record, retain world-renowned experts, research and argue important legal issues, and prepare for and try this case. It has been a labor of love for the team.

What was the trial setup like? Did the court’s pandemic protocols change in any way how you were able to put on your clients’ case?

The trial felt a bit like old times. The Court certainly took care to protect people with plastic screens around the bench, mask wearing for all in the courtroom who were not speaking, and social distancing between jurors. But in many ways, it felt normal to be examining witnesses in person and publishing documents to the jury. It was a challenge to read the reactions of jurors who had two-thirds of their faces covered with masks, but ultimately we learned to adapt and read their eyes as best we could.

Des, I’ve read that toward the end of your closing you asked the jury to sit quietly for a minute and consider how slowly time passed for your clients over their three decades-plus in prison. Have you done that before? Where did the idea come from?

As with most things in this trial, the closing was borne of my efforts, as well as the work of Cate Stetson, and many others on the team who compared notes on various points that we should emphasize for the jury. In the past, when I have argued for pain and suffering damages, I have asked jurors to focus on the deep emotional toll that certain acts have had on my clients. But the device of asking the jurors to sit quietly came first from Henry’s guardian, Raymond Tarlton. I then built on that, ultimately asking the jury to think of the unspeakable suffering of Henry and Leon on death row as they sat quietly. Our team suspected that if the jury focused silently on how Henry and Leon had been preyed upon and had lost the will to live while in prison, they would be more likely to return a large verdict in our clients’ favor.

Despite the fact that your clients had been exonerated and given full pardons of innocence, defense lawyers at your trial attempted to raise the specter that they might be guilty. Did that surprise you? How did you handle that? 

I acknowledge, as I said in court, that our team was mystified by the defense tactic of trying to implicate our clients in these crimes. There is a staggering amount of evidence pointing to our clients’ innocence.

First, the poor 11-year-old victim of the rape/murder was found 40 feet from the house of a serial rapist and murderer who had a 25-plus year history of sexually assaulting girls and young women. His DNA was found at the crime scene. He admitted to investigators that he hugged, kissed and grabbed the victim by her wrists on the night of the murder. And he ended up raping and killing another young girl a couple of weeks later, less than one mile away with a materially identical Modus Operandi.

Second, as for our clients, there has never been any physical evidence whatsoever tying them to the crime and no eyewitnesses against them. The only evidence against our clients were coerced confessions of these teenagers, with IQs in the 50s, who had never been in trouble—taken in the middle of the night, after hours of brow beating, screaming, and cursing, when threats of the death penalty were made along with promises that they could just “go home” if they admitted involvement. The “confessions” also made no sense. They were inconsistent with each other, they implicated numerous people who were in other cities and states at the time of the crime, and they were wildly inconsistent with the crime scene evidence.

Third, the former D.A., the former Innocence Commission Investigator, the former FBI Special Agent, and the former Governor of North Carolina all concluded that Henry and Leon were innocent after deep reviews of the record evidence.

Against this backdrop, it was a surprise that the defendants kept going there. I believe the defendants’ continued failure to admit that a grave injustice occurred ended up reinforcing the point with the jury that defendants are still engaging in a three-decades plus cover-up about the truth of how they violated our clients’ Constitutional rights.  Moreover, defendants’ continued insistence on pursuing a “they are guilty” defense allowed us to make repeated objections (four times in opening, twice in closing) and seek curative instructions about the meaning of the Pardons of Innocence that the Governor of North Carolina issued in 2015, which were given.

The New York Times and the Marshall Project reported that money intended for your clients’ care had been spent on “predatory loans, exorbitant legal fees, multiple cars, women’s jewelry and children’s toys” after an earlier settlement. What steps have you and the court taken to make sure that doesn’t happen again?

As the New York Times and the Marshall Project and others have reported, Henry and Leon were the victims of the improper behavior of their previous lawyer and some of his confederates. Thankfully, now the appropriate courts have appointed guardians with expertise who will act as fiduciaries and protect the payments made to Henry and Leon from improper dissipation and coordinate the care they need.

What will you remember most about handling this matter?

It is hard to pick from the dozen memories that I have been reliving every day. But the current front runner was the moments after the verdict was read when our team all got to hug Henry and Leon in the well of the court and share tears. Henry and Leon both expressed to me, each in his own way, how moving it was to them that we believed in this case and took it to trial, and that a jury ruled in their favor. More than the money, Henry and Leon cared about the message that this verdict sent that the Constitution applies everywhere and to everyone.