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.
Lovitt was one of the review's first priorities, and preliminary results indicate no apparent problems in his case file. It was not an evidentiary review but rather a paperwork review of procedures.
But Lovitt's advocates do not believe the quick review was enough. On June 22, a coalition of religious, civil-liberties and civil-rights groups in Virginia called on Warner to stay Lovitt's execution and commute his sentence to life in prison. The group argued that Lovitt faces a Catch-22, with no chance for post-conviction testing because there is no evidence.
"We cannot send a man to his death with so many unanswered questions," the group wrote in a letter to the governor.
A spokesman at Warner's office said that Lovitt's bid for clemency is under consideration and that it will be decided today if the Supreme Court declines the case. Warner, a Democrat in a Republican-dominated state with a long history of capital punishment, has been governor through 11 executions, since 2002. He has never granted clemency.
In Northeast Washington and its surrounding suburbs, the family of Clayton Dicks is not worried about DNA testing or destroyed evidence. They said they share a different concern altogether: What if the execution is stopped?
Mary Dicks, 84, said that seven of her children -- nearly all of Clayton Dicks's surviving brothers and sisters -- plan to witness Lovitt's execution. It is a tightly scripted event that victims' families can view from a private room.
"They want to make sure," Dicks said. "Since he killed Clayton, they want to see him go. The whole family thinks he deserves it. They were crazy about Clayton."
Clayton Dicks was killed Nov. 18, 1998. A night manager at Champion Billiards Sports Cafe, Dicks worked hard on the job, his mother said, and came home to two boys -- whom he raised on his own, as his own sons, in Northeast after they were left with him by a onetime girlfriend. When he was killed, the boys were seniors in high school and college.
Dicks had wedding plans, good health, a future, his mother said. He visited her on Sundays and helped other relatives with such chores as mowing grass.
Mary Dicks has decided to forgo the execution, having been through too many other deaths in recent years. "It's not going to bring Clayton back," she said. "I don't want to see anyone killed, but if you kill someone, then you're supposed to deserve the same thing the other man gets."
As for Starr's involvement in the case, Dicks said: "If someone in his family got killed, he wouldn't try to clear the man who killed his son."
Death row was a two-hour drive. Tonglya Carter looked upon her older brother through the glass of a visitors' room. She and Lovitt had exchanged letters, but it had been years since she had seen him. Only a matter of days were left until his execution date.
She broke down.
"It's going to be okay," Carter recalled him saying. She collected herself -- sitting there with another brother and a cousin, aware that Lovitt's life might soon be over.
Lovitt made it clear, she said, that he would not discuss the possibility of execution. "He just wants everyone to know he is innocent, [that] he didn't do it," she said.
For the time they had, she said, she enjoyed the sight of him -- the brother who once sent her to school in the morning and cooked for her when her mother was not around, and who became a beloved uncle to her children.
It was hard for her to imagine that he had ended up this way, she said -- in spite of a childhood that she finds hard to discuss openly. They grew up in a tiny house in a tough little neighborhood in Arlington, 12 kids in a cramped space, lorded over by Lovitt's alcoholic stepfather who sold and used drugs, according to court documents.
The stepfather, court documents state, singled out Lovitt for special abuse because he was the eldest child and the only one who was not his own. Lovitt was beaten -- sometimes in bed at night, once with a telephone cord, in a house where sexual abuse was common, court papers said.
By the time Lovitt was 5, he had taken his first alcoholic drink, according to drug treatment records, and by 8 he had smoked marijuana. He turned to speed and heroin as a teenager, then PCP and crack cocaine. He had a long string of arrests. By 35, he had spent 15 years behind bars, mostly on burglary, drug and larceny charges.
Months before the killing, Lovitt tried to correct course, landing a job at the pool hall and taking culinary classes at Stratford College. But he fell into drugs again. He applied for long-term drug treatment, writing: "I've used drugs all my life and I need all the help I can get."
Lovitt admitted to being high on crack the night of the crime and to stealing the cash-register drawer and taking it to his cousin's house, behind the pool hall. But he has insisted he had nothing to do with Dicks's killing.
The evidence against him includes a jail informant's testimony and an eyewitness who said he was "80 percent" certain the killer was Lovitt. Bloody scissors that prosecutors said were used in the crimes were found between the pool hall and the house of Lovitt's cousin.
DNA results on the scissors could not be conclusively linked to anyone except the victim.
On death row since March 2000, Lovitt has seen 19 other men leave for their executions. His visitors said he has tried to stay positive, writing poetry and greeting cards, serving as a barber to other death-row inmates and becoming well-acquainted with his legal briefs.
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.
Starr himself has delivered courtroom arguments and prepared legal briefs. On Tuesday, he went to see Lovitt on death row. He found Lovitt to be "very warm, very human, extremely articulate," he said. "He was remarkably at peace."
In a clemency petition to Warner, attorneys made arguments about the evidence destruction, but they also asserted that capital punishment was never the right choice for Lovitt's crime.
"The death penalty should be reserved for the most heinous of cases," Starr said -- terrorists, criminals who kill multiple victims. "It can work effectively," he said, "where there is a very high degree of moral certainty, aided by DNA evidence."
Lovitt is not in the same league, Starr said -- a glimpse of which he got when he visited death row and observed the nearby cell of Washington area sniper John Allen Muhammad. "To equate Robin Lovitt's circumstances with that of John Muhammad is so appalling," he said.
To the Supreme Court, Starr and his legal team focused many of their arguments on Lovitt's trial lawyers, who they say erred in not presenting Lovitt's "horrific" childhood during his sentencing.
If just one juror had been swayed by the drugs and abuse he grew up with, Starr said, Lovitt would have drawn a life sentence.
"It only takes one juror to have his or her conscience moved and to say, 'I believe under these circumstances of this childhood, this background, that life in prison is appropriate," he said.
In several other courts, the attorney general's office successfully argued that the lawyers acted wisely in their decisions about Lovitt's background. One court agreed, calling it a "can of worms" that could have hurt as much as helped Lovitt.
Still, Starr remains passionate about the case. With evidence destruction, childhood omissions and a claim about prosecutors failing to disclose potentially damaging statements from a medical examiner, he sees "a constellation" of important legal issues. "When you take these facts together, one has cause to wonder, why the death penalty here?"
Staff researcher Bobbye Pratt contributed to this report.