VIRGINIA GOV. Mark R. Warner (D), who has less than two months left in office, has not stopped a single execution during his four-year term. He would do well to break that streak in the case of Robin Lovitt, who is scheduled to die Wednesday for a pool hall murder in Arlington in 1998. Mr. Lovitt came close to execution in July but was saved when the Supreme Court slapped a stay on the case -- thus letting Mr. Warner temporarily off the hook for deciding Mr. Lovitt's fate. But the justices later decided not to hear the matter, so the governor is now the last hope for mercy. Mr. Warner would send a strong message about the integrity of Virginia's criminal justice system if he granted Mr. Lovitt's petition for clemency.
The Lovitt case is not the sort of crime that typically yields a death sentence. Mr. Lovitt was convicted of stabbing a friend named Clayton Dicks after Mr. Dicks surprised him while he was stealing the cash box at the pool hall. Mr. Dicks was a night manager there, and Mr. Lovitt formerly worked there. It's a terrible crime, but capital murders generally involve some particularly horrifying factors that are not present here.
More important, the state destroyed all physical evidence that Mr. Lovitt might seek to test to prove his long-standing claim of innocence. Under Virginia law, the commonwealth must preserve physical evidence, and Mr. Lovitt's case is a good example of why. The evidence of his guilt is substantial, but it is not overwhelming. The testing at the time of his trial yielded nothing firm; retesting material with improved methodology might prove more conclusive. But unfortunately, there's nothing left to test. This is not, it seems, because of any malicious effort to prevent Mr. Lovitt from exonerating himself but because of an administrative blunder in which a court clerk -- despite objections from subordinates -- had almost all of the trial exhibits destroyed.
The absence of malice was important as a legal matter to the courts that reviewed the case. But for Mr. Warner, permitted by law to commute Mr. Lovitt's sentence to life without parole for whatever reason he finds compelling, motive ought not to matter. Mr. Lovitt is in no better shape by virtue of the evidence having been destroyed by accident. In a case where some doubt clouds a conviction, the state has frustrated the sort of retroactive DNA testing its laws are designed to facilitate. Under such circumstances, an execution should not go forward.