Convicted murderer Robin Lovitt is scheduled to die by injection at Virginia's Greensville Correctional Center on Wednesday night. Only Gov. Mark R. Warner can save his life.
Warner (D) has not yet granted clemency to a condemned killer since he took office in 2002. The state has executed 11 men in that time. But now, as Warner is considering a run for the 2008 Democratic presidential nomination, he must make a decision on the most controversial death penalty case of his four-year term.
Lovitt's attorneys argue that their client -- who has maintained his innocence -- should be spared because an Arlington Circuit Court clerk mistakenly threw away DNA evidence that could have proved his claim. Lovitt's legal team, which includes former Whitewater independent counsel Kenneth W. Starr, says that if Warner doesn't intervene, faith in Virginia's criminal justice system would be eroded permanently because of the possibility of an innocent man's execution.
"Clemency will help ensure that the death penalty retains the support of Virginia's citizenry," Lovitt's attorneys wrote in their petition for clemency. "Indeed, commuting Mr. Lovitt's sentence to life in prison is vital to demonstrating that, in Virginia, society's ultimate sanction will be used only when every precaution has been taken to ensure that innocent persons are never executed."
Lovitt's attorneys are asking that their client's sentence be commuted to life in prison, not that he be pardoned or set free. In an interview last week, Starr said that, as a result of the clerk's mistake, Lovitt has been "deprived of a very important remedy."
Starr also said that Lovitt has been steadfast in his claims of innocence. "He looked me in the eye and stated very firmly and forthrightly that he did not take that life," Starr said.
Lovitt, 41, was convicted and sentenced to death in the November 1998 stabbing of Clayton Dicks, 45, during a robbery at an Arlington pool hall.
Emily Lucier, spokeswoman for Virginia Attorney General Judith W. Jagdmann, last week declined to comment on the clemency request, saying it rested in the governor's hands. In an earlier interview, Lucier said the case did not hinge on DNA evidence and that other evidence, including eyewitness testimony, "overwhelmingly implicated" Lovitt.
The destroyed evidence has caused several academics, law students and religious officials to support Lovitt's appeal for clemency. His case also has attracted nationwide attention because Lovitt is in line to become the 1,000th prisoner executed in the United States since the death penalty was reinstated in 1976.
If the execution proceeds, he will become the first person executed this year in Virginia, which has executed more inmates than any state but Texas.
Kevin Hall, Warner's spokesman, said the governor, who supports the death penalty, has twice heard presentations by his counsel and other outside attorneys about the clemency petition and the views of the victim's family and others involved in the case.
"The governor is giving it thorough and prayerful consideration," Hall said.
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."