Pro Bono Innovators 2023 Honoree WilmerHale

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors WilmerHale for its work with the Innocence Project to secure a historically significant ruling vacating the wrongful conviction of Muhammad Abdul Aziz for the 1965 murder of Malcolm X, and for winning a preliminary injunction over Ohio’s six-week abortion ban, following the US Supreme Court’s ruling in Dobbs in October 2022. (The case is set to continue before the Ohio Supreme Court.)

Your firm’s pro bono work included working with the Innocence Project to obtain a ruling vacating the conviction of Muhammad Abdul Aziz for the 1965 murder of Malcolm X on Nov. 18, 2021. The firm also secured a preliminary injunction of Ohio’s six-week abortion ban on October 12, 2022. How did your firm strategize on how to approach these matters?

April Williams and Debo Adegbile: The Aziz matter was unique in that it involved a factual record that was more than 50 years old, and the murder of a historic figure that received enormous publicity at the time it occurred. Malcolm X’s murder has continued to garner intense focus, and to be reexamined. We worked closely with our pro bono partners, the Innocence Project, and with the David B. Shanies Law Office (counsel to Mr. Aziz) to develop a strategy to take a fresh look at the factual record and identify the legal arguments that were the most likely to bear fruit for Mr. Aziz. WilmerHale analyzed and considered the significance of documents from a wide array of sources, including the files of Mr. Aziz’s former attorney, materials collected in conjunction with key post-conviction filings (many of which were more than three decades old), and materials made public by the FBI.

We also worked closely with the Innocence Project and the Shanies Law Office to brainstorm and develop the strongest legal arguments, including those based on newly discovered exculpatory evidence and based on the constitutional violations that infected Mr. Aziz’s prior conviction.

Michelle Nicole Diamond: We began strategizing on how to protect reproductive rights well before the Supreme Court’s decision in Dobbs. Ohio’s six-week abortion ban had been preliminarily enjoined under the federal constitution, and we knew that we needed to be ready for an adverse decision.

Drawing on the creativity and strength of the WilmerHale litigation team, and the expertise of our co-counsel from Planned Parenthood, the ACLU, and ACLU-Ohio we analyzed the Ohio Constitution, history, and case law to develop legal theories challenging the ban as unconstitutional under the Ohio Constitution. When the ban took effect within hours of the Dobbs decision, we were ready.

At a full-day evidentiary hearing scheduled with only three weeks’ notice, we worked closely with abortion providers to tell the devastating stories of those affected by the six-week ban, and with experts show that the ban subjected Ohioans to irreparable harm that necessitated emergency re lief. In the week leading up to the hearing, the WilmerHale team defended or took 14 depositions to fine-tune our strategy and gather evidence. The focus on the real-world impact of the loss of abortion access—together with our legal arguments—was critical to our success. (WilmerHale attorneys on this matter were Michelle Diamond, Peter Neiman, and Davina Pujari.)

What were the most innovative aspects of two of your clients matters in your view? And who took the lead on driving innovation with the work?

April Williams and Debo Adegbile: For the Aziz matter, the enormous amount of publicity surrounding the murder of Malcolm X with the release of the 2020 Netflix documentary “Who Killed Malcolm X,” and the fact that more than 50 years had passed since Malcolm X’s murder, meant that we had to take an innovative approach to reviewing the factual record and analyzing the key legal questions in this matter. We started by working with our pro bono partner, The Innocence Project, and the David B. Shanies Law Office to identify the critical threshold legal arguments that we needed to advance in order to vacate Mr. Aziz’s conviction.

We analyzed and considered the significance of documents that originated from a wide array of diverse sources including the files of Mr. Aziz’s former attorney, materials collected in conjunction with key post-conviction filings (many of which were more than three decades old), and materials that had been made public by the FBI. From there, we identified a fairly narrow category of materials that seemed the most likely to be relevant, and we focused our detailed review on those items. At the same time, when conducting legal research, we tried to remain focused on the key arguments that seemed the most likely to bear fruit for Mr. Aziz. This, of course, required close coordination with The Innocence Project, which played an invaluable role in helping drive our innovative approach to this matter.

Michelle Diamond and Allyson Slater: Anticipating the Supreme Court’s decision in Dobbs, WilmerHale engaged in in-depth research of Ohio state constitutional and procedural law. After the Dobbs decision, the firm was able to leverage that research in a challenge to Senate Bill 23, a six-week abortion ban, in the Hamilton County Court of Common Pleas. The complaint and accompanying emergency relief briefing presented novel legal theories to argue that the ban was unconstitutional, including an argument that the law violates the Ohio Constitution’s Equal Protection and Benefit clause by impermissibly discriminating against women.

Coupled with its innovative legal arguments, the WilmerHale team infused its briefing and oral argument with narratives of the real-life consequences of the six-week ban on Ohioans. The team pulled from news reports that were happening in real time and incorporated them into the briefing. 

The WilmerHale attorneys worked closely with their clients—abortion providers in Ohio—to learn about the horrors happening in clinic waiting rooms and around Ohio. Those doctors provided powerful testimony at the preliminary injunction hearing, after which Judge Christian Jenkins held that the Ohio Constitution supports the right to abortion, enjoining the ban’s enforcement.

Tell us more about the impact of these matters on the local, national, and/or global level.

April Williams and Debo Adegbile: It would be difficult to overstate the historical significance – at both a local and national level – of our work with The Innocence Project on Mr. Aziz’s exoneration. The nearly two-year investigation led directly to the formal exoneration of Mr. Aziz (and his co-defendant, Khalil Islam, who died while incarcerated) in November 2021. The news was widely reported in the New York Times and other national news outlets.

The exonerations came at a flashpoint in this country’s ongoing conversation about endemic racism and discrimination in the criminal justice system. A year after the exonerations, and after Mr. Aziz spent more than two decades in prison for a crime he did not commit, New York City agreed to pay $26 million dollars to settle civil lawsuits filed by Mr. Aziz and the estate of his co-defendant.

Michelle Nicole Diamond: [In the Ohio matter,] prior to the filing of the lawsuit, abortion was essentially unavailable in Ohio: A ban at six weeks of pregnancy is so early that many people do not yet know they are pregnant. Now, thanks to the efforts of the WilmerHale team, Ohioans once again have access to critical reproductive care. 

In addition, the WilmerHale strategy in Ohio provides a possible template for challenges to abortion bans in other states: While Dobbs was an immeasurable setback for reproductive rights WilmerHale is demonstrating that there can be protections at the state constitutional level.

Why do you think your team ultimately achieved successful results in these matters?

April Williams and Debo Adegbile: The Aziz matter was the perfect example of a case where success was the result of team effort. Wilmer worked closely with The Innocence Project, as well as the David B. Shanies Law Office, in crafting the factual and legal arguments that led to the successful joint motion to vacate. At the same time, Mr. Aziz’s case gained national attention after the release of the Netflix documentary “Who Killed Malcolm X,” featuring historian Abdur-Rahman Muhammad. The tireless efforts of Mr. Muhammad, and many others, to continue to publicize the many holes in the case against Mr. Aziz also greatly contributed to Mr. Aziz’s exoneration. The Wilmer team was honored to play a role in this historic effort to obtain justice for Mr. Aziz.

Michelle Nicole Diamond: Our success in Ohio can be attributed to the strength, depth, and dedication of its litigation team.  Attorneys from four offices were integral members of the team, each contributing a specific area of expertise: In New York, trial expert Peter Neiman conducted devastating depositions of the state’s experts, which provided for incredibly effective cross-examination at the preliminary injunction hearing.  San Francisco partner Davina Pujari lent her regulatory expertise to dissect the minutiae of the Ohio code.  

In the week leading up to the preliminary injunction hearing, the WilmerHale team engaged in 14 depositions, worked with experts on three rebuttal reports, and drafted new briefing and motions in limine. That was possible because of the stalwart leadership of Michelle Diamond and Allyson Slater—who elicited compelling testimony at the hearing from fact and expert witnesses—and the trust they had in the half-dozen associates who comprised the rest of the team.

What did you do to celebrate when these matters were resolved?

April Williams and Debo Adegbile: The best part of working on the Aziz matter, by far, was getting the news in November 2021 that Mr. Aziz was going to be exonerated. While each member of the team processed and celebrated that historic victory in their own way, we all took a tremendous amount of pride in knowing that we had helped to clear the name of an innocent man who had been wrongfully convicted and served decades for a crime he did not commit.

Michelle Nicole Diamond: The judge ruled from the bench that a preliminary injunction would be entered, and—in a dramatic speech that cited everyone from Abraham Lincoln to Justice Frankfurter—concluded that Ohio’s Constitution protects the right to abortion as an exercise of liberty and that the ban violated its Equal Protection clause by discriminating against women.

We took a brief moment that evening to celebrate the importance of the victory and the restoration of critical reproductive care for Ohioans as well as women in neighboring states. And then we got back to work. There remains much more to be done in the many states in which reproductive rights are threatened by draconian abortion restrictions.

Responses provided Debo Adegbile, partner and chair, anti-discrimination practice, and April Williams, partner, and Michelle Nicole Diamond, partner, and Allyson Slater, counsel.