Outside the Beltway

Virginia Governor Mark Warner Grants Clemency to Prevent 1000th Execution

James Joyner · Tuesday, November 29, 2005 · 8 comments

Governor Mark Warner today granted clemency to convicted murderer Robin Lovitt, thus avoiding having him be the 1000th felon executed since the death penalty’s restoration in 1976.

Va. Gov. Grants Clemency for Condemned Man (AP)

Virginia’s governor on Tuesday spared the life of a convicted killer who would have been the 1,000th person executed in the United States since the Supreme Court allowed capital punishment to resume in 1976. Robin Lovitt’s death sentence was commuted to life in prison without parole a little more than 24 hours before he was to be executed by injection Wednesday night for stabbing a man to death with a pair of scissors during a 1998 pool-hall robbery. In granting clemency, Gov. Mark R. Warner noted that evidence from the trial had been improperly destroyed, depriving the defense of the opportunity to subject the material to the latest in DNA testing. “The commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly,” Warner said in a statement.

Warner, a Democrat, had never before granted clemency to a death row inmate during his four years in office. During that time, 11 men have been executed. Virginia is one of the most active death-penalty states, having executed 94 people since 1976. The 1,000th execution is now scheduled for Friday in North Carolina, where Kenneth Lee Boyd is slated to die for killing his estranged wife and her father.

[…]

Lovitt’s lawyers, who include former independent counsel Kenneth Starr, and anti-death penalty advocates had argued that his life should be spared because a court clerk illegally destroyed the bloody scissors and other evidence, preventing DNA testing that they said could exonerate him.

Lovitt was convicted in 1999 of murdering Clayton Dicks at an Arlington pool hall. Prosecutors said Dicks caught Lovitt prying open a cash register with the scissors, which police found in the woods between the pool hall and the home of Lovitt’s cousin.
Lovitt admitted grabbing the cash box but insisted someone else killed Dicks. DNA tests on the scissors at the time of the trial were inconclusive. But more sophisticated DNA techniques are now available.

The governor said he was “acutely aware of the tragic loss experienced by the Dicks family.” “However, evidence in Mr. Lovitt’s trial was destroyed by a court employee” before post-conviction DNA tests could be done, he said. “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.”

While it’s a shame that the evidence was destroyed, DNA testing was done on the implements before the trial a mere six years ago. The man has subsequently exhausted his appeals. The purpose of appelate review is to ensure due process was observed, not to retry the basic facts of a case.

The WaPo account examines the likely rationale:

For Warner, the decision in Lovitt’s case could have political implications as he begins to navigate the national scene. He unveiled a federal political action committee this month and has been speaking around the country. Interest in Lovitt’s fate, and Warner’s decision, is intense. Officials at the Virginia Department of Corrections said Tuesday that they have received press calls from Poland, Australia, France and Italy about the execution.

Past candidates for president have discovered that such actions have come back to haunt them. Former Massachusetts governor Michael Dukakis supported a state furlough program only to be later linked in campaign ads to Willie Horton, who committed a murder while out on furlough. But Warner has some political cover from Republicans — including former independent counsel Kenneth Starr, one of Lovitt’s attorneys — and legal experts, who have urged the outgoing governor to grant clemency. That includes a contingent of academics, law students and forensic experts, all citing concerns about the destruction of evidence. Former Republican attorney general Mark L. Earley, who now is president of Prison Fellowship Ministries in Northern Virginia, said it would be “morally unfair” to carry out the execution.

One wonders whether this decision would have been made had Lovitt been the 1003rd man slated for execution or Warner weren’t running for president.