The Work

September 23, 2011 6:59 PM

Q&A: Jason Ewart of Arnold & Porter, Attorney for Troy Davis

Posted by Victor Li

Perhaps no other recent capital punishment case has captured the American public's attention the way the one involving Troy Davis did. Convicted of murdering an off-duty police officer in 1989, Davis fought for more than 20 years to clear his name. Among his arguments: that, over time, seven of the nine eyewitnesses who originally testifed against him sought to either alter or fully recant their trial testimony. Along the way, Davis picked up such high-powered supporters as former President Jimmy Carter, Bishop Desmond Tutu, and Pope Benedict XVI. His appeals exhausted, Davis, age 42, was put to death by lethal injection at 11:08 p.m. in a Jackson, Georgia, prison on Wednesday, September 21.

The legal team assisting Davis until the end included a group from Arnold & Porter worked on the case pro bono. Jason Ewart, an eighth-year antitrust associate based in Washington, D.C., was a key member of the team. Though he spends the bulk of his time reviewing mergers and acquisitions and counseling clients on regulatory issues, he has been working on the Davis case since becoming a practicing attorney in 2003. Ewart enjoyed some success in the matter—including winning a last-minute, temporary reprieve from the U.S. Supreme Court in September 2008—the failure to prevent Davis's execution, he says, hit him hard professionally and personally.

Contacted by The Am Law Daily via e-mail Thursday, Ewart, who witnessed Davis's execution, descibed the experience of working to exonerate a convicted killer, his thoughts on the death penalty, and the feelings stirred up by the death of a man he considered more than a client.

How do you feel today?

I feel a loss today. Troy and I spoke every week for over seven years. His loss hits his family hardest, but there are many more of us who considered him a friend.

You first started representing Troy Davis as a first-year associate. Why did you decide to get involved in this case?

Kathleen Behan, a partner at my firm, was a well-known death penalty lawyer who made a name for herself litigating innocence cases. Troy's sister saw her on television talking about another case and asked Arnold & Porter to help. We dove into the facts with the heroic investigators and attorneys from the Georgia Resource Center in Atlanta and found that Troy had not received a fair shake at trial. There was a gripping narrative to be told that Troy simply was at the wrong place at the wrong time.

What was your stance toward the death penalty before you started representing Davis? Has your experience affected your views on the subject?

I have always been ambivalent about capital punishment. There are truly awful crimes committed by truly awful people. Watching Troy's execution last night may have unalterably changed my views.

Can you describe those final moments?

The gurney Troy was strapped to was tilted at a 45-degree angle toward a giant picture window with lighting that seemed to be intended to make Troy the center of attention. There was nothing clinical or medical about it. The harsh paralytic cocktail administered in the first few minutes froze his body, but his eyes showed he was still there. Once the lethal agents were administered, any pain or agony he may have felt was masked by his paralysis. It was apparent that Troy's frozen state was intended only to make those watching feel that they were watching something humane. Many minutes passed, and I watched my client's eyes—which began to close, but were inexplicably forced open by a nurse who entered from the wings—fix and dilate while locked with my own. His breathing stopped and there was only quiet.

Can you talk a little about how the firm supported you and your team in representing Davis?

The firm has given us all the resources we needed to pursue this case. Never once were there any questions about the countless hours we spent or the bills required to represent and investigate Troy's case. [Associate] Danielle Garten came onto the case in 2007 a month before she and I conducted a clemency hearing for Troy. Partner Phil Horton has also been there for years, lending his ample experience in high-profile death penalty cases. [Associate] Steve Marsh, a former assistant U.S. attorney in Savannah, lent his litigation skills to our case starting in 2010. And [associate] Reeves Anderson spent countless hours drafting briefs and petitions. Other associates and legal assistants have also made great sacrifices and done great work, including Wells Bennett, Katherine Lindsey, and former A&P associates Bondurant Eley and Dominic Vote. The Georgia Resource center's Brian Kammer, Tom Dunn, and investigators Jeff Walsh and John Hanusz did truly heroic work. There were nights the investigators spent in dumpsters in bad parts of Savannah, just to track down the recalcitrant alternative suspect and try to bring him to court. 

Could you describe what was going through your mind during those four hours Wednesday when the Supreme Court delayed the execution in order to consider a stay?

At the time, I was in the prison waiting to be a witness to the execution per Troy's request. I had been there before and then sent home after the Supreme Court issued a stay in 2008. I knew that it could happen again. I saw the former prosecutor who had tried the case run out of the adjacent room red in the face about an hour and a half after the scheduled execution. I thought that could only be a good sign. I made sure that Troy was not waiting for word while strapped to a gurney, and watched the clock tick by. When I later saw the same prosecutor file out of the prison toward the death house, I knew it was over.

Were you surprised by the outpouring of support that Davis received, especially during his final days?

We have become used to seeing exonerated inmates walk out of the courthouse as the result of DNA testing. After seeing so many of these cases, the natural question to many is, "What happens to those inmates who do not have DNA to prove their innocence?" They suffer from the same faulty processes as do DNA exonerees, including unreliable eyewitnesses, police overreaching, and jailhouse snitches. This case had all of those factors, but no DNA. 

If seven of the nine original witnesses recanted all or parts of their original trial testimony, why wasn't a new trial ordered?

We made a motion for new trial in Georgia and a sharply divided Georgia Supreme Court determined [in 2008] that recantations cannot serve as a basis for a new trial unless new evidence shows that the original testimony was "physically impossible." Courts are skeptical of recantations for institutional reasons. It’s easier to make the trial the paramount event and not revisit such testimony even in extraordinary circumstances. We argued that there was no case where so many witnesses had recanted, but that argument fell on deaf ears to four of the court's justices. 

Davis was convicted by a jury. He had a chance at a special hearing last year to prove his innocence, and Chief Judge William Moore of Savannah federal district court was not convinced. What do you say to people that believe he got more than adequate due process of law?

Troy fought for ten years to get a hearing, and it was only through extreme measures and intervention by the U.S. Supreme Court that we got one. The innocence claim we were pursuing had actually never been recognized before by the Court; the Court had only stated that if such a claim did exist it would require an extraordinarily high burden. With only 20-year-old testimonial evidence, the district court charged with conducting the hearing did not believe we met that burden. For example, we introduced a new eyewitness who was no doubt at the scene and saw the shooting who testified that Troy was not the shooter. The district court discarded this compelling new witness because he came forward too late.

A lot of people might not understand why it's so difficult to overturn a guilty verdict, especially in a capital case. Why is it so difficult to prove innocence?

The courts have an institutional interest to avoid retrying cases, even if there is compelling new evidence. For these reasons, the procedural bars and burdens of proof require the accused to present compelling new evidence of innocence. Moreover, courts are skeptical of new evidence that does not come in the form of science. While a jury may have looked at our recanting witnesses and new eyewitnesses and believed them, judges are less likely to do so.

Some commentators have speculated that the Davis case might be the impetus for the country to start to turn against the death penalty. On the other hand, support for the death penalty seems to be as strong as ever in some quarters. Do you think the country will abolish the death penalty anytime soon?

I took this case to serve my client, not a cause. I am ambivalent about the death penalty, but after witnessing a close friend die as a result of lethal injection I see little point to it other than revenge. I do believe that capital punishment in this country may someday end, and that this case will be one of the many reasons for its demise.

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Regardless of one's views on capital punishment, no one can deny that our legal system is a better place because of attorneys like Mr. Ewart.

Thank you for your dedication to this profession.

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