The Work

September 25, 2008 6:16 PM

Arnold & Porter Associate Wins Rare Stay of Execution

Posted by Daphne Eviatar

Jason Ewart found himself walking down the halls of a Georgia maximum security prison Tuesday afternoon, hours before the scheduled execution of his longtime client Troy Davis. It would be the last of several visits made over five years while representing Davis pro bono.

As a fifth-year associate who practices antitrust and consumer protection law at Arnold & Porter in Washington, D.C., Ewart, 32, never expected to spend so much time in a prison. But ever since 2003, when as a first-year associate he signed on with then partner Kathleen Behan to handle the matter--Davis had been convicted of murdering a Savannah police officer at the age of 20 in 1989--he came to know the halls of the mammoth Georgia Diagnostic and Classification Prison well.

The heart of Davis's habeas case was that seven of the nine trial witnesses had recanted their testimony, with several claiming police coercion. Davis consistently proclaimed his innocence. He'd received international pleas of support from such eminent figures as Jimmy Carter, Archbishop Desmond Tutu, and Pope Benedict the XIV.

But in the U.S., appeals and then habeas petitions to the Georgia Supreme Court, through the federal district courts and all the way up to the U.S. Supreme Court, had been to no avail. By the time of the appeal to the Eleventh Circuit, Behan had left the firm, so the lead counsel role fell to Ewart, who wound up arguing the case. The three-judge panel ruled that despite the disturbing new evidence, Davis had defaulted on his claims by not raising them in state court. (Arnold & Porter only got involved after the federal district court's habeas ruling. The Georgia Resource Center had handled the case earlier, and continues to assist on the case.)

Ewart later sought a new trial from the Georgia Supreme Court, but the court declined to hear the case--it ruled that although new evidence can sometimes merit a new hearing in a death penalty case, witness recantations are never enough.

Davis again petitioned for review by the U.S. Supreme Court, but by Tuesday, the scheduled day for the execution, little hope of a stay remained.

Ewart and Davis's family and friends made their way to the prison to see Davis one last time. Arnold & Porter associate Danielle Garten waited in the lobby by a phone, just in case.

"I was on my way up to the execution chamber," Ewart recalls. "I didn't have my cell phone or BlackBerry or any kind of communication device, because they take that from you in the prison," he explains. "The guards stopped us and kept us there for a while," he says. "We thought we were getting the runaround until one of the guards kind of winked at me. That's how I knew something good was going to happen."

A little after 5 p.m. Tuesday, just about an hour and a half before the scheduled time of execution, the U.S. Supreme Court issued a temporary stay, pending the Court's consideration of Ewart's latest petition for certiorari.

The Supreme Court will decide September 29 whether it will hear Davis's case. Ewart and Garten's petition explains that seven of nine witnesses have recanted, and several new witnesses have identified or implicated a different person as the shooter. "Mr. Davis's case allows this court an opportunity to determine what it has only before assumed," they wrote, "that the execution of an innocent man is constitutionally abhorrent.” 

Next week, the court will decide whether it wants to take that opportunity.

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