The U.S. Supreme Court ordered a stay in the execution of Robin Lovitt Monday, only three hours before he was expected to die by lethal injection for the 1998 murder of his former boss, Clayton Dicks.
ALL NINE justices took part in the order, which states the court has not resolved questions surrounding DNA evidence. Lovitt is on death row in the Greensville Correctional Center in Jaratt, Va. His defense attorneys — including former White House Special Prosecutor Ken Starr — sought a last-minute clemency from both the court and Gov. Mark Warner.
The stay remains until October, when the court will either consider hearing Lovitt's appeal or allow the state to push ahead with his execution.
"We are hopeful that when the members of the court return in the fall, the court will review the important issues raised in Mr. Lovitt's petition and reverse the judgment of the lower court," said Lovitt's defense team at the law firm of Kirkland and Ellis in a statement released Monday night.
<bt>Lovitt was convicted in 2000 and four courts have upheld the initial death penalty verdict. Prosecutors presented a trail of evidence indicating Lovitt's guilt, beginning with witnesses who saw him enter the Shirlington pool hall where Dicks was later found only a short time before the murder. In the woods nearby, a K-9 unit uncovered a bloodied pair of orange-handled scissors. An autopsy concluded that was the murder weapon. Through the woods and on the other side is the home of Warren Grant, Lovitt's cousin, who testified that on the night of the murder, Lovitt walked into his backyard carrying a cash register box.
The murder scenario put forth by the prosecution describes a crime of desperation. On the day of the murder, an appeals court decision states, Lovitt — only days out of a drug rehabilitation program — had pawned his television for quick cash to buy crack and needed more.
Lovitt, the state contends, entered the pool hall where he once worked as a cook and hid inside the bathroom until Dicks, the manager, left the front room. Lovitt then left the bathroom and jimmied the cash register open with the scissors, a trick that one of his former co-workers told the trial jury she had seen him demonstrate one day when the drawer was jammed, according to court documents. The state argues that Dicks returned to the register only to find Lovitt in the middle of robbing it. Based on the testimony of Casel Lucas, Lovitt's one-time cellmate, Lovitt admitted to stabbing Dicks because he could have identified him.
Since his conviction, Lovitt has maintained that he is innocent. Under police questioning, his account of the murder puts a third man in the pool hall that night. According to his clemency petition, Lovitt admits to stealing the register drawer but told police he had nothing to do with Dicks' murder.
Lovitt's defense scenario, the petition states, is that he entered the pool hall with no money and asked Dicks, his friend, for food. Dicks agreed to prepare him something and headed back to the kitchen. Lovitt went into the bathroom. In there, he overheard Dicks fighting with someone in the front room. Stepping out, he spotted Dicks fighting with someone and, frightened, he ran back into the bathroom to hide.
After a long time, he came out again and saw Dicks on the floor dead. In panic and still in desperation, he took the register drawer and fled.
<bt>Police caught up to Lovitt three days after the murder. At his initial trial, prosecutors used a combination of DNA evidence, witnesses, forensics and Lucas' testimony to make the case against Lovitt. It worked and Lovitt got the death penalty. On appeal, defense attorney's raised questions about whether Lovitt's due process rights had been respected, appeals court documents show. They told judges that the trial court had barred the testimony of several witnesses and that it failed to remove a juror they said was prejudiced because she once lived next to a family who had been murdered. Lovitt was also kept from examining prospective jurors and from arguing that since there is no parole for a convicted capital defendant, a life sentence would mean death in a prison cell.
"For our part, his due process rights were respected," said Emily Lucier, a spokeswoman for the Virginia Attorney General's Office.
Yet the task for defense attorneys appealing the case was made harder by a simple clerical error that had serious consequences. Appeals court records show that a court clerk admitted to destroying DNA evidence in the case by accident. That evidence included the alleged murder weapon and Lovitt's jacket, one with a nickel-sized blood stain that police believe he wore the night of the murder. Initial DNA testing had proven inconclusive but the accident meant this evidence could not be retested.
Starr took up Lovitt's case pro bono in Feb. 2005 as it went before the State Supreme Court in Richmond. In court, Starr has stressed the details of Lovitt's traumatic childhood, details that never made it into the first trial and, he said, could have made the difference in his sentencing.
<bt>Robin Lovitt, 41, had spent much of his life in jail by the night he walked into the pool hall. According to his family, Lovitt had been a drug addict since childhood, hooked by a step-father who also supplied him. Addiction lead him to crime, which lead to arrests for theft, narcotics possession and other charges.
"When we were no older than 8 years old, my father would put all the weed out on the table and have us help him bag it up," said Ronald Jones, his half-brother, in Lovitt's clemency petition. "By age 12, me and Rob were out there selling weed. We were like the two youngest things out there on the street."
Lovitt's step-father, many family members say, subjected the children
in his home to constant sexual and physical abuse.
"Robin tried to protect us from our father," said Tonglya Jones Carter, Lovitt's half-sister. "He also took care of us when our mother couldn't. Robin would cook, clean, wake us up for school, because our mother was frequently in the hospital with illnesses."
Other siblings affirmed that Lovitt's step-father encouraged his addictions and was abusive. "To understand our family, you must first understand that our father was constantly either drunk or high or both," said half sister Lemanda Jones. "Robin had to be a father to us because our own father was not."
<bt>At the heart of Lovitt's case are many serious questions about DNA testing. In May, Gov. Warner ordered state reviews of more than 150 cases built on DNA evidence after an independent audit found flaws in the methods of state crime labs. Lovitt's case was not among those to get a second look, because the primary DNA evidence had already been destroyed. Prosecutors maintain that the lost items would have served as strong support for the case against Lovitt, but DNA experts for the defense believe otherwise.
"Additional DNA testing could have conclusively ruled out Robin Lovitt as the second contributor of DNA found on the alleged murder weapon," said George Riley, a forensic consultant and biology professor at Georgetown University.
Riley said DNA testing has evolved since Lovitt's first trial and new technology could have pointed out where the prior tests may have been mistaken. He added that prosecutors misrepresented the meaning of the initial test results to jury. The DNA found on the murder weapon wasn't conclusive enough to implicate Lovitt but Riley said the state told jurors that because it shared one small component with Lovitt's genes, it was a strong indicator of his guilt.
"The prosecution mischaracterized and misused DNA evidence at trial," said Riley.
When prosecutors asked a state DNA analyst if Lovitt could not be excluded as the source of blood on the scissors, she said the evidence said he could not be. But, Riley said, it is "an essentially meaningless fact that Mr. Lovitt- along with about half of Virginians- shared the inconclusive result found on the alleged murder weapons." In regard to the blood on Lovitt's jacket, DNA expert William Thompson said the state failed to explore whether the stain came from Dicks, as prosecutors said in court, or from Lovitt.
"The underlying DNA test results strongly suggest that the blood on Lovitt's jacket, which the prosecutor attributed to the victim, could not have come from the victim and, in fact, came from Lovitt himself," said Thompson. "The test results on the jacket are weak by conventional standards." He added that in Lovitt's first trial, prosecutors gave the jury a faulty impression of what the DNA test results meant.
"It appears the government applied a double standard in this case," he said. "The extremely weak and problematic results that linked Lovitt to the murder were presented to the jury and used as a basis for arguing that he was the killer. But the jury was never told about the relatively stronger and more convincing results that supported Lovitt's innocence by showing that the blood on his jacket did not come from the victim."
Peter Neufeld, director of the Innocence Project at the Cardozo School of Law, a group that represents 200 inmates awaiting DNA retesting across the United States said that the genetic material used to single out Lovitt from the crime occurs in 45 of the African American population. That material alone, said Neufeld, cannot be used to identify Lovitt as Dicks' killer.
"Obviously, the more regions, or genes, one profiles, the more discriminating the test and the more able the test is to eliminate falsely included persons," Neufeld said. "If all you knew was the eye color of the perpetrator, you couldn't eliminate as many suspects as you could if you also knew the perpetrator's height, weight, hair color and facial characteristics." Neufeld added that the testimony of Casel Lucas, Lovitt's cellmate, is also questionable. In 20 percent of death row cases in which the defendant is later exonerated, the Innocence Project has found that prosecutors used a jailhouse informant to win the conviction.