Attorney gives all in death case

At the moment Jason Ewart answered his cellphone Friday, his colleagues in the hotel room knew it was the kind of bad news that would break the emotional meter.

“They denied clemency,” he said, hanging up.

Ewart stood zombielike, as though the world had stopped. The euphoric relief he had known briefly after a slew of sleepless, pressure-cooker days evaporated.

He had felt confident that he and his team of young, energetic antitrust lawyers from Washington had done everything possible for Troy Anthony Davis, condemned to die for the murder of a Savannah police officer. Ewart had just finished praising the progressive nature of Georgia’s system for clemency.

Now that system had punched him in the gut.

At 4:10 p.m., silence befell the 18th-floor room at the Georgian Terrace in Midtown. No one moved. They stared down at their feet. After four years of exhausting work, the feisty legal team was out of plays. It would take a spectacular Hail Mary to save their client now.

Earlier in the day, Ewart and his partners had appeared before the state Board of Pardons and Paroles, hoping to convince members that their client was an innocent man who did not deserve to die.

But the board thought otherwise.

Davis, convicted in the 1989 murder of Officer Mark Allen MacPhail at a downtown Savannah Burger King, is scheduled to be executed by lethal injection on Sept. 23.

Ewart had not expected a decision so soon. How could they have made up their minds so quickly? He walked to the kitchen sink and poured a glass of water. His face was beet red. Either the prosecution did a bang-up job, he thought, or his team did a poor one. He refused to believe the latter.

He and his partners had holed up in a hotel conference room early Thursday and stayed awake until 5 Friday morning. They pored over 10 boxes of files —- police records, court transcripts and newspaper clippings —- documenting a case they could already recite by heart.

Everyone knew the big picture. But what of the details? They had mulled over every little point and in the process of preparing their presentation for the board, they were still discovering things.

They realized that the lineup photo of Davis that police showed witnesses was the same as in the “wanted” posters. It was “unnecessarily suggestive,” they believed, a flawed facet of a conviction won largely on eyewitness testimony —- a case with no murder weapon, no DNA, no fingerprints. Since the trial, seven of nine eyewitnesses had recanted their testimony. What if there were other facts the lawyers had overlooked?

Not even boxed sushi lunches brought in by an assistant broke their concentration.

It wasn’t like working in the corporate world, where criminals scheme illegal mergers, not murder. Ewart doesn’t stay at work past midnight for a corporate client, but he did that on many occasions for Davis. Not that he is opposed on principle to the death penalty; he just had to give it his all to save a man he believes is innocent. He had counted his pro bono time on this case —- 500 hours a year since 2004.

With Davis’ life on the line, Ewart had to be sure his team hadn’t missed a thing.

The 32-year-old signed on to defend Davis soon after graduating from law school at Emory University and joining Arnold & Porter in Washington. His partners, Dominic Vote, 28, and Danielle Garten, 30, a Sprayberry High School graduate, are also antitrust lawyers. They said they gave their heart and soul to the case because they couldn’t stand to see a death row inmate go without legal representation.

“It’s part of the obligation of our profession,” Garten said. “Just like a doctor would not turn away from a sick patient.”

A majority of Georgia’s 110 death row inmates are indigent and cannot afford to retain lawyers. Because the state does not provide representation for post-conviction proceedings, calls often go out nationwide seeking lawyers to volunteer their services, said Robin Maher, director of the American Bar Association’s Death Penalty Representation Project. She said law firms often shun capital cases because of the enormous expense and extreme politics of the death penalty, especially in Southern states.

“There’s no question it’s controversial in jurisdictions where the constituency supports the death penalty,” Maher said.

But Ewart’s firm, Arnold & Porter, is known for encouraging pro bono work. It offered the green lawyer a choice of two criminal cases.

Ewart chose Davis. He was from Savannah. The case reminded him of “Midnight in the Garden of Good and Evil.”

Ultimately, it was a heavy burden for a man who had never taken on a death penalty case, though Ewart felt Davis did better retaining smart, young lawyers rather than someone experienced but bitter from juggling too many defendants accused of heinous crimes.

The Davis case, like many capital cases, has drawn hue and cry from both supporters and foes of the death penalty. MacPhail family members said they have already waited too long for justice. There are many others who joined them in rejoicing in the decision to deny clemency.

Last year, Davis’ lawyers persuaded the board to grant a temporary stay of execution. The decision spared the condemned man just 24 hours before he was scheduled to die. He had asked Ewart, who has never witnessed an execution, to be present for his death.

When the board reported its decision Friday, Ewart knew he would have to go back to work to try to find some legal claim in the case that might resonate with a court. He also knew that with virtually all legal channels exhausted, he might soon have to watch Davis get strapped into a gurney and injected with drugs that will stop his heart.

The only thing worse, Ewart said, would be witnessing a cold-blooded murder, like MacPhail’s.