Warner Weighing Inmate's Plea For Clemency

During a 1999 trial, prosecutors said Lovitt went to Champion Billiards Sports Cafe, a 24-hour pool hall where he had worked as a cook, to steal money. They said Lovitt was confronted by Dicks and that he grabbed a pair of scissors off the bar and stabbed Dicks six times.

A customer who walked in during the attack testified at trial that he was 80 percent certain that Lovitt was the assailant. And a cellmate told jurors that Lovitt had confessed.

No DNA evidence linked Lovitt to the killing. But Dicks's DNA, along with that of another person, were found on a pair of scissors from the scene. Tests done on that genetic material were inconclusive, and neither implicated nor exonerated Lovitt.

Before Lovitt's appeals were exhausted -- and three weeks after a Virginia law took effect that required the preservation of biological evidence from all felony trials -- an Arlington court clerk threw away all the evidence, including the scissors, eliminating the chance of further testing.

Lovitt admits that he was at the pool hall the night of the killing but says he stayed in the bathroom while Dicks fought with another man. He said he emerged to find that Dicks had been stabbed, grabbed the cash box and fled.

Stephen F. Smith, a University of Virginia law professor, said that without compelling evidence of innocence it is difficult for any governor, particularly one considering national office, to grant clemency. He said Republicans could use such a decision to paint Warner as "soft on crime."

"I think Mark Warner would be playing with fire by granting this clemency request without clear-cut evidence of innocence," Smith said.

If a candidate appears soft on crime, it can be difficult to rebound, Smith said. He recalled the 1988 presidential race in which Democratic nominee Michael Dukakis damaged his campaign when asked during a debate whether he'd support the ultimate punishment if his wife were raped and murdered. Dukakis, with an apparent lack of emotion, said he didn't think the death penalty was a deterrent.

Elizabeth T. Smith, a University of South Dakota professor who teaches a course called "Who shall die? The politics of the death penalty in the U.S.," agreed that politicians run the risk of losing support if they appear to waver in their support of capital punishment.

"Americans often use the death penalty as a cue as to how tough a politician is on crime," she said. "You can't win an election by being merciful."

But recent concern over wrongful convictions could give Warner the backdrop he needs if he decides to spare Lovitt, she said. Warner would have to defend that decision by noting that DNA testing has resulted in exonerations and by explaining that such tests are impossible in this case because of a state error. Warner also would have to stress that he wasn't releasing Lovitt, just commuting his sentence to life behind bars, she said.

"It's not letting him out on the street. It's saying that, in the absence of conclusive proof, taking someone's life is an extreme and unjust action," she said.

Other than Warner, every Virginia governor who could commute a death sentence has done so since the U.S. Supreme Court allowed executions to resume in 1976. Republican John N. Dalton was the first to spare an inmate in 1981. The most recent occurred in 1999, when then-Gov. James S. Gilmore III (R) granted clemency to Calvin E. Swann, a convicted murderer who suffered from schizophrenia and spent time in mental institutions.

In recent months, Lovitt's plea has gained the support of a broad group of academics and anti-death penalty advocates. But concern over the destruction of DNA evidence also has resulted in some unlikely allies.

Mark L. Earley, the former Republican state attorney general who now is president of Prison Fellowship Ministries in Northern Virginia, has urged Warner to grant clemency. Earley said in a letter to Warner that he feels "great sympathy" for Dicks's family, but that it would be "morally unfair to execute Mr. Lovitt."

Dicks's mother, Mary Dicks, said she remains convinced that Lovitt killed her son. She said several of her children are planning to travel to Jarratt on Wednesday to witness his execution.

"What he gave Clayton, that's what he deserves," Dicks said. "Clayton got death. The Lord knows who did it. I know he did it."