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Death Sentence Upheld for Inmate Represented by Starr

By Donna St. George
Washington Post Staff Writer
Thursday, April 7, 2005; Page B03

A federal appeals court yesterday upheld the death sentence of an Arlington man, rejecting the arguments of his well-known attorney -- former independent counsel Kenneth W. Starr -- and noting that much "went right" during the legal process.

The U.S. Court of Appeals for the 4th Circuit turned down Starr's claim that inmate Robin M. Lovitt, 41, was denied his due process rights because a court clerk in Virginia destroyed nearly all the physical evidence in his case, making post-conviction DNA testing impossible.

A three-judge panel of the court wrote that although the clerk "made a serious error in judgment," the physical evidence had not been discarded in "bad faith," and the mistake had occurred after Lovitt's trial. An earlier court "went out of its way to consider every piece of evidence on this issue," the judges wrote in a 23-page decision.

The case dates to November 1998, when Clayton Dicks, 45, a night manager at an Arlington pool hall, was stabbed to death and a cash register drawer containing about $200 was stolen. A jury convicted Lovitt in 1999, and he was sentenced to death.

Among Starr's other arguments was that Lovitt's trial attorneys had erred in not bringing up Lovitt's "horrific" childhood during sentencing. Often juries choose life in prison rather than death when they hear testimony about childhood neglect and abuse, Starr pointed out.

But the court said Lovitt had "seasoned attorneys" who made a strategic decision not to introduce more details of Lovitt's troubled background. "It is entirely possible that . . . drawing attention to this can of worms would have actually hurt Lovitt's case, rather than helped it," the court wrote.

In its ruling, the court concluded that appellate lawyers "understandably sought to use [Lovitt's] case as a symbol of all that goes wrong in the criminal justice system, at least as it pertains to capital punishment. But that view overlooks all that went right in an imperfect system, to be sure, but one that is as fair and conscientious as human beings can make it."

Starr was traveling yesterday and could not be located, but his legal team expressed disappointment. His firm said in a statement, "We will continue to pursue all available channels for relief."

Emily Lucier, a spokeswoman for the Virginia attorney general's office, said prosecutors were pleased. "As the court pointed out, this case has received an unprecedented amount of review of all of his claims, and his sentence should be carried out," she said. "As in all cases, we should remember the suffering of the victim and the victim's family."

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