Duc in Altum

Yesterday, at virtually the eleventh hour, the United States Supreme Court has granted a stay of execution to Robin Lovitt, the Virginia man who was scheduled to be put to death at 9 p.m. on Monday. The stay will remain in place until October when the full court will be in session. At that time, the court will either agree to hear the plaintiff's appeal or allow the Commonwealth of Virginia to proceed with its execution of Lovitt.

The case of Robin Lovitt once again brings to light the concerns associated with the administration of capital punishment. There are a number of problems with his case that, if for no other reason than simply a lack of sufficient certainty, should deem that his sentence be commuted to imprisonment.

Lovitt was convicted in 2000 for the murder of Clayton Dicks in a Shirlington pool hall. Yet DNA evidence in the case was destroyed, according to court records, only one day after the state enacted a law ordering the preservation of such material. What DNA was recovered tested inconclusive, and a fingerprint analysis on the pair of scissors police believe was used to kill Dicks failed to find anything that singles out Lovitt as the murderer.
Lovitt's new attorney, former White House Special Prosecutor Ken Starr, said Lovitt had inadequate representation during his first trial. Lovitt's court-appointed counsel, Starr said, failed to bring facts about his client's past into the courtroom that could have made the difference between a death sentence and one of life in prison. Lovitt, Starr said, suffered years of physical and sexual abuse at the hands of a stepfather who also got him addicted to crack cocaine. It was this addiction that landed Lovitt in jail several times as a youth and ruined his prospects for a functional life.
"This very, very sad, poignant story could have the difference in his sentencing," said Starr. Connection Newspapers

The problem with the destruction of the DNA evidence is that eliminated Lovitt's last possibility to have the conviction overturned. Through no fault of his own, he would be denied the opportunity of a post-conviction examination of the DNA evidence. It should be noted that the early examination of the DNA evidence was inconclusive, but today there are more sophisticated tests which could have been applied, if the evidence still existed.

Two court clerks testified that they urged the clerk who wanted the evidence destroyed not to do it. Despite their pleas, the deputy clerk had a judge sign an order for the evidence to be removed, and despite the recent passage of a law which would prohibit such an action, the evidence was destroyed on May 21, 2001. It does not matter that the destruction was not done in "bad faith" as one court contended. The fact of the matter is that the evidence is no longer available which prevents it from being used to either overturn his conviction or prove that he is indeed guilty.

Beside the obvious problem that the destroyed DNS poses to providing certainty that Lovitt is the murderer, there were possible due process problems with the original trial. Lovitt's attorney had some odd limits placed on his challenging evidence. In addition, one of the jurors may have been prejudiced in her view of the case because she lived next door to a family that was murdered. Finally, none of Lovitt's very difficult upbringing which was brought up by his attorneys at the sentencing. Such information might have persuaded the jury to sentence him to imprisonment rather than execution.

As many have pointed out, with such possible procedural problems and uncertainty on several key issues, notably the DNA evidence which due to its destruction cannot be reviewed, it would seem that the execution should not take place. Instead, if there is no way to re-examine the DNA, it would seem that Lovitt's sentence should be in favor of life. It would still be life in imprisonment.