Va. Man Nears Execution in Test of Destroyed DNA

Robin Lovitt is waiting in the death house in Jarratt, Va. He is in a small holding cell about 10 steps from the gurney where he is scheduled to be strapped down for execution at 9 tonight. He is trying not to dwell on death, his visitors have said -- and he is proclaiming his innocence.

Before tonight, his 47-page appeal will be taken up by the U.S. Supreme Court. If the appeal fails, the fate of Lovitt, 41, will rest in the hands of Virginia Gov. Mark R. Warner (D), who can grant him clemency.

It is a day of high-stakes decisions in a case that has captured widespread attention and created a test of capital punishment as rarely before. In an era in which DNA so definitively determines guilt and innocence, lawyers and religious leaders are separately asking whether a death sentence should be carried out after a state mistakenly destroys DNA evidence that had the potential to clear a man.

The question is particularly pointed in Virginia, which is second to Texas in its number of executions since 1976 -- the year the Supreme Court permitted states to resume the death penalty -- and where its DNA laboratory is scrutinized closely because of errors in its analysis in another death penalty case.

How Lovitt's final pleas will go is difficult to predict, experts have said, even as one of the nation's best-known lawyers, Kenneth W. Starr, the special prosecutor who investigated the Clinton scandals, has become Lovitt's unlikely ally in the courts in what is his first death penalty case.

"To be an appellate lawyer in a death penalty case is largely swimming against the tide," said Scott Sundby, a law professor at Washington and Lee University in Lexington, Va. "Once a death sentence is entered, it's very difficult to undo."

The day of decisions was set in motion more than six years ago, when Lovitt was arrested for fatally stabbing the night manager of an Arlington pool hall, Clayton Dicks, 45, in a robbery that netted $200.

Jurors took two hours to convict Lovitt, then sentenced him to die.

After his appeals started, the case took an unusual turn. His attorneys went to the Arlington courthouse to examine his trial evidence -- and discovered that nearly every piece had been destroyed. His attorneys have argued that this is especially notable because earlier DNA results were inconclusive and more sophisticated tests now exist.

"That's just wrong that someone can face death where there are safeguards in place and those were known and violated," Starr said in an interview, his voice gathering emotion. "That's just wrong."

On the other side, the attorney general's office contended that Lovitt has had his chance at appeals. "This case is not a DNA case," said Emily Lucier, a spokeswoman for the office. "Other evidence, such as eyewitness testimony and a confession to a fellow inmate, overwhelmingly implicated Robin Lovitt as the perpetrator of this heinous crime."

Lovitt's execution date has approached during a critical audit of the state lab that tests DNA for criminal cases. The audit was released in May. Last month, Warner ordered a review of DNA results from 161 criminal cases, including Lovitt's.