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Attorney Jay Ewart, former defense counsel to Troy Davis, discusses death penalty, the role of doubt

| Friday, November 22, 2019

On Sept. 21, 2011, Troy Davis was executed for the 1989 murder of Officer Mark MacPhail of the Savannah Police Department. Davis, a black man, maintained his innocence throughout the 20 years in prison and multiple appeals that ensued, and his highly publicized case drew international attention and protest.

The Notre Dame Exoneration Project, the Klau Center for Civil and Human Rights and several other organizations hosted a lecture with Jay Ewart, Davis’s lead counsel, Thursday afternoon.

Lenora Popken, a third-year Notre Dame law student, opened the lecture with a reflection on her experience protesting outside the Georgia prison where Davis was to be executed.

“By seven, the chants of, ‘Not in my name,’ and ‘I am Troy Davis’ could be heard beyond the prison gates,” Popken said. “However, those cries fell upon deaf ears and at 10:53 that night, the state of Georgia took the life of 42-year-old Troy Anthony Davis and had the audacity to claim they did it in the name of the citizens of Georgia, despite compelling evidence of Mr. Davis’s innocence.”

After reading the transcript of Davis’s last words, Popken introduced Ewart, who was with Davis in his final moments as witness to his execution after working with him for eight years. Ewart said something about this particular case struck a chord with people.

“The case started to gain momentum with a couple interviews on NPR, which eventually led to a New York Times op-ed to talk about how there was a grievous wrong: how of all of the evidence against Troy, which was nine witnesses at trial, seven had recanted,” Ewart said. “There was an alternative suspect who confessed to multiple people and mounting evidence convinced them that they said that he shouldn’t die for his crimes.”

Ewart laid out the facts of the case as pieced together by witnesses and Davis himself. On the night of Aug. 19, 1989, a disagreement between a neighborhood man called Red and a homeless man named Larry escalated outside of the Burger King where MacPhail was working off-duty security. Davis attempted to step in as the altercation got violent and Red threatened Larry. Red hit Larry in the face with his pistol and Davis ran away. Moments later, MacPhail came around the corner to intervene and was shot dead. Larry suffered a brain injury so severe that he was unable to remember who hit him and killed MacPhail. Red initially denied having possession of a weapon that night and later admitted he had but had lost it.

“Now, the question then is, if Red was the aggressor, if he was the one who had the gun and admitted that he was doing it, if it was a .38, which was the murder weapon, if he could never have produced it, if he was the one standing across from Larry, who was pistol whipped and the same man who pistol whipped Larry shot the officer, all facts that were uncontroverted at trial and appeal, how did Troy get convicted?” Ewart said.

Ultimately, the lack of concrete evidence meant the police had to rely “almost entirely” on eyewitness accounts, Ewart said. Eyewitness evidence had long been the key to many trials and can be reliable when used correctly.

“We know today, thanks to studies being done of DNA exonerations, that between 75 and 85% of all wrongful convictions are the result of eyewitness misidentifications,” Ewart said. “They’re not always wrong, but there are proper practices that we understand today.”

Ewart explained those practices: witnesses should view photograph lineups separately from each other, witnesses and officers should not see photographs of the suspect before seeing the lineup, photographs should be arranged sequentially, all the photographs presented should have the same background and the witness should not get some sort of positive response from the officer after identifying the suspect. Every one of these standards was violated in Davis’s case.

After his initial conviction in 1991, Davis got a new team of lawyers as well as investigators from the Georgia Resource Center in Atlanta on his case in 2000. As the investigators began to revisit the crime scene and talked to witnesses, Ewart said, it became clear the power dynamic between the witnesses and police officers had influenced their testimony.

“These were vulnerable people,” Ewart said. “You had — of the nine witnesses — you had two homeless persons, two teenagers, an illiterate fast food worker and a woman out on parole. … Each of them said, ‘I didn’t see what I actually saw. I felt pressure from the police and the position I was in. I was on parole. I was a teenager and the police were threatening me. I had nowhere to go. I needed medical help, and … I couldn’t get it until I told the police what I thought they wanted to hear.’ … Eerily similar.”

Ewart, then a recent graduate of Emory Law School, joined Davis’s case as a pro-bono attorney in 2004 while the case was mired in lower courts. Over the next several years, Davis was granted two stays, one in 2007 and one in 2008, that delayed Davis’s execution. After the first stay, Ewart filed a petition with the Georgia Supreme Court.

“I made the argument that recantations of the vast majority of trial witnesses in a case with no physical evidence should be enough for a new trial or at minimum should warrant an evidentiary hearing in front of a judge,” Ewart said. “At that point, we had affidavits from seven of the nine eyewitnesses, in addition to other evidence that no judge ever actually looked at. Every time we tried up to that point to make an argument it was a procedural dismissal of some sort or another.”

Davis’s case lost by one vote. After more legal wrangling, another stay and refusals to hear the case, the Supreme Court of the United States allowed the case to be transferred to a district court in Savannah. The team assembled once again in Savannah in 2010, this time with a key witness: Red’s nephew, Ben, whose uncle had told him never to speak of the incident when he was a teenager in 1989. Ben was now in prison as a result of the War on Drugs, Ewart said, and despite his moving testimony, the team lost the case.

“His testimony was moving, incredible, all consistent with exactly what the known facts were to be at the time,” Ewart said. “But he testified in shackles in an orange jumpsuit and our judge just didn’t believe a word he said.”

Red avoided testifying throughout this process and was the witness the judge wanted, Ewart said. The judge delivered a 167-page opinion and sentenced Davis to death.

Ewart finished his lecture with a call to remedy the failings of the legal system, and recalled an instance when he sent Davis the novel “To Kill a Mockingbird” to read while in prison. 

“It wasn’t a week later that he wrote me back,” Ewart said. “The letter, I still have it, I was reading it last night … he was quoting Atticus Finch … the quote read, ‘The law says reasonable doubt. But I think a defendant’s entitled to a shadow of a doubt. There’s always the possibility, no matter how improbable, that he’s innocent.’”

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