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Kenneth Starr Argues Capital Case

Former Independent Counsel Handles Virginia Conviction

By Jerry Markon
Washington Post Staff Writer
Wednesday, February 2, 2005; Page B01

Former Whitewater independent counsel Kenneth W. Starr yesterday took on a case unlike any he's had: the appeal of Arlington's only death row inmate.

Starr, a former federal judge and U.S. solicitor general, argued the case of Robin Lovitt before the U.S. Court of Appeals for the 4th Circuit in Richmond. He urged the judges to overturn Lovitt's conviction in the 1998 killing of an Arlington pool hall employee, who was stabbed six times with a pair of scissors.

Kenneth W. Starr appealed a conviction in an Arlington pool hall slaying. (File Photo)

For Starr, who does not specialize in criminal law and has never represented an inmate on death row, it was an unusual assignment. He became involved when his law firm, Chicago-based Kirkland & Ellis, took the case and other lawyers asked his advice. Starr and the firm's lawyers are handling the litigation free of charge.

Starr said in an interview that he favors the death penalty but believes "the death penalty has to be administered with the utmost caution and reserved for the gravest offenses. This is not that kind of case. Robin Lovitt maintains his innocence, and evidence that might prove his innocence has been destroyed. I'm very distressed by that."

An Arlington jury in 1999 convicted Lovitt, 41, in the slaying of Clayton Dicks, 45. Dicks, a night supervisor, caught Lovitt on Nov. 18, 1998, as he was trying to break into a cash box at Champion Billiards Sports Cafe on Shirlington Road, according to court testimony.

As the case has wound its way through state and federal courts, attorneys have tried many of the arguments that Starr made yesterday. He told a three-judge panel that prosecutors committed misconduct when they failed to tell the defense that their own expert concluded that the scissors could not be the murder weapon. And he said Lovitt's rights were violated when an Arlington courthouse clerk threw away all of the evidence before his appeals were complete.

Evie Eastman, an Arlington deputy commonwealth's attorney, said yesterday that prosecutorial misconduct "is an argument they've made for a long time. Several courts have determined that our actions did not cause any injustice to Mr. Lovitt."

Tim Murtaugh, a spokesman for the Virginia attorney general's office, which represented the state yesterday, added, "What is not in dispute is that the defendant committed a cold-blooded murder in the process of robbing a pool hall."

Starr also argued that Lovitt's attorneys had erred during the trial by not fully researching his background and not telling the jury he had been physically abused as a child. Such evidence, he said, could have persuaded jurors to recommend life in prison instead of the death penalty.

Denman Rucker, one of Lovitt's original attorneys, said he had "beaten the bushes" on Lovitt's behalf but at the time did not unearth any allegations of abuse. "We researched everything we thought could help Robin," Rucker said. "There were many things in his past that could cut both ways."

Starr, who handles a variety of cases for the law firm but works there part time because he is also the dean of Pepperdine University's law school, said he enjoyed his experience before the appellate court.

"Society had better be absolutely certain before they put someone to death who is maintaining his innocence," he said. "I feel very passionately about that."

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