OUTGOING VIRGINIA Gov. Mark R. Warner (D) acted rightly and humanely yesterday in granting the clemency request of Robin M. Lovitt. Mr. Lovitt was scheduled today to become the 1,000th convict put to death in the modern era of capital punishment -- a dubious distinction that someone else will soon claim. Mr. Warner had never granted clemency before; there have been 11 executions during his four years in office. But the circumstances of Mr. Lovitt's case demanded action. The governor deserves credit for not letting his presidential ambitions keep him from responding appropriately to the facts.
There is no particular reason to doubt the determination in 1999 by a jury in Arlington that Mr. Lovitt killed his friend and former co-worker Clayton Dicks during a robbery of the pool hall at which Mr. Dicks worked. But Mr. Lovitt has always maintained his innocence, and DNA tests at the time were inconclusive. It is for just such circumstances that Virginia law requires the preservation of physical evidence until a convict's appeals are exhausted.
The trouble in this case, as Mr. Warner put it in a statement yesterday, was that the evidence "was destroyed by a court employee before that process could be completed," so that testing was impossible. As Mr. Warner aptly summarized the matter, "the actions of an agent of the Commonwealth, in a manner contrary to the express direction of the law, comes at the expense of a defendant facing society's most severe and final sanction."
It is not such a sacrifice for the state to forgo capital punishment in favor of life in prison when its own admittedly illegal actions -- inadvertent though they apparently were -- foreclose any possibility of an inmate's proving his claim of innocence. To the contrary, it is an insistence on rigor and fairness in the justice system. The lesson of the many cases of retroactively proven wrongful conviction is that you often can't be sure -- even in cases such as Mr. Lovitt's, where the evidence seems strong. Under the circumstances, as the governor rightly decided, the prudent course is for the state to stay its hand.