Va. Man Nears Execution in Test of Destroyed DNA

Yesterday, six of his relatives were in Jarratt to visit him. When his sister recently asked him about his state of mind, he told her he continues to have faith in God and his attorneys, she said. "He knows his lawyers are doing the best they can," she said.

For Starr, Lovitt's case is an example of the death penalty process gone wrong. "The facts of this case cry out for there not to be capital punishment," he said.

Not the stereotypical liberal advocate for the condemned, Starr, 58, is a onetime federal judge and U.S. solicitor general who served in the Reagan and George H.W. Bush administrations, a man who grew up in a conservative religious home in Texas and thought the death penalty had its place.

Starr said that he has not changed his mind on capital punishment but that he has "a much deeper appreciation for the need for the system to be fair and open to the possibility of mistake and failure."

To Starr, the evidence destruction is critical. He recites the date it was ordered: May 21, 2001.

The problem started when a deputy court clerk decided to make space in an evidence room by discarding everything in Lovitt's case except one chart. Two other clerks objected, warning him that appeals were continuing and that DNA was involved.

"The guy's not dead yet," one clerk said, according to court testimony. "You can't destroy it."

But the deputy clerk, who later said he believed the appeals were over, proceeded anyway. A judge signed an order, and police took the evidence to the trash.

In the discarded box was a pair of scissors that prosecutors had identified as the murder weapon. The scissors had shown the victim's blood. Other DNA results were inconclusive.

"To this day," Starr said, "there has not been an adequate explanation as to why both law and policy were violated in that destruction." He points out that a law requiring the preservation of biological evidence recently had taken effect.

The courts have sided with prosecutors in ruling that the evidence destruction was not done in "bad faith."

Those are details Starr has become steeped in, four years after his law firm, Kirkland & Ellis, took on Lovitt's case as a pro bono project.