A judge has set July 11 as the date for the execution of Arlington's only death row inmate, Robin Lovitt. Yet Lovitt's attorney, former White House special prosecutor Ken Starr, is still appealing to the state for mercy on the grounds that his client's initial case was mishandled.
"The law says that a jury must have all the information available in making the ultimate judgment in order for them to properly deliver society's ultimate sanction," said Starr, who is now the dean of Pepperdine University's School of Law. "I cannot stress enough the importance of his court-appointed attorney's failure, though I'm sure his representative was qualified, to do a family history and a social history of Robin's background so the jury could then make a decision. But, for that to be presented, the lawyers must have engaged in an investigation. That was not done."
Lovitt's childhood, according to affidavits presented during the appeals process, was marred by physical and sexual abuse at the hands of an alcoholic stepfather. The constant fear that plagued Lovitt as a young man was compounded, the documents state, by drug addiction. His stepfather gave him his first beer at age 5, his first hit of marijuana at 7. The pattern progressed into his teenage years until Lovitt was smoking crack cocaine and PCP that his stepfather also supplied. After dropping out of school, Lovitt turned to crime, and by his 30s he had spent more than a decade in prison on charges ranging from drug possession to burglary and petty theft.
None of this information reached the jury before Lovitt was convicted in 2000 for the stabbing death of Clayton Dicks during an after-hours robbery at Champion Billiards, a Shirlington pool hall Dicks managed.
"This very, very sad and poignant background could have made the difference in his sentencing," Starr said.
BUT IT'S THE DNA evidence in Lovitt's case, or the lack thereof, Starr said, that casts more doubt on Lovitt's guilt. During the 2000 trial, a court clerk destroyed samples of DNA retrieved from the scene.
"That posed a very serious situation," said Starr. "Robin has maintained his innocence, but he was denied a fundamental tool for proving it, one that was taken away from him in violation of state law."
The clerk destroyed that evidence only days after a state law had gone into effect mandating that all biological evidence in court cases be preserved. Its loss, according to prosecutors, was a simple mistake that would not have changed the trial's outcome and may have even helped convict him.
"It was a strong piece of evidence against him," said Emily Lucier, a spokeswoman for the state attorney general's office.
According to the records of Lovitt's trial, state forensic scientist Carol Palmer, an expert witness on DNA testing, testified that the DNA evidence recovered proved inconclusive. Lawrence Abrams, an identification technician for the Arlington County Police Department, testified that he was unable to obtain fingerprints from the handle of the scissors police believe Lovitt used to stab Dicks, due to the irregular shape of its surface.
Part of the prosecution's case rested on the testimony of Casel Lucas, who was an inmate in the Arlington County Detention Center at the time of Lovitt's arrest. Lucas testified that Lovitt confessed to the murder. He told the jury Lovitt admitted to killing Dicks because Dicks had recognized him. Other witnesses testified to seeing Lovitt at the pool hall, where Lovitt had once worked as a cook, prior to the robbery. However, no witnesses have surfaced to give a positive identification of the man seen stabbing Dicks inside the pool hall. One, according to court documents, said he was 80 percent certain Lovitt was the assailant.
The jury also heard testimony from Warren Grant, Lovitt's cousin. Grant said that on the night of the robbery, Lovitt appeared at his home with a metal box. He said Lovitt asked him to help pry it open. It contained money. A similar box was missing from the scene of the crime.
Under police questioning, according to case records, Lovitt said he entered the pool hall on the night of the murder hungry and asked Dicks for food because he had no money. Dicks, he claims, agreed to make him some eggs. Lovitt, according to his own account, then went into the bathroom and came out to see Dicks arguing with an unknown man. Lovitt said he went back into the bathroom to hide and when he came out, Dicks was dead. Lovitt told police he then took the cash register drawer and fled, fearing he would be arrested if found at the scene.
YET THERE ARE other factors at play in the case, factors that defense attorneys and anti-death penalty groups believe lead to an unfair trial. One is the faulty screening of jurors. According to court documents, one jury member in Lovitt's trial had lived next to a family of five that was murdered. Allowing that juror to serve, attorneys contend, violated Lovitt's right to a fair and impartial jury. Other due process questions have also arisen surrounding the testimony of witnesses, limits the court placed on how Lovitt's attorney could challenge evidence and restrictions on the arguments attorneys could have made for a sentence of life in prison rather than execution. But four courts have upheld the jury's initial verdict.
"For our part, the courts determined that Lovitt's due process was not violated," said Lucier.
Lovitt's impending execution comes at a time of renewed debate over DNA evidence in Virginia. On May 6, Gov. Mark Warner released the findings of an independent audit of the state's central crime lab ordered after the discovery that technicians had botched the analysis of evidence in a capital murder case. The study led Warner to order the review of 161 additional cases.
Lucier stressed that the destruction of evidence in the Lovitt case was little more than an error. But with no DNA samples from the crime scene to review, Lovitt's case is not among those getting a second look.
"The state of Virginia destroyed the supposed murder weapon, a pair of bloody scissors that could have proven Robin’s innocence," said Jack Payden Travers, executive director of Virginians for Alternatives to the Death Penalty. "How can the Commonwealth now proceed to execute this man after knowingly and willfully destroying evidence in an ongoing murder case? Given the facts in Mr. Lovitt’s case, we certainly hope that this execution is blocked by either the U.S. Supreme Court or through an act of clemency on the part of Gov. Mark Warner.”
Starr said he will appeal to the U.S. Supreme Court but declined to comment on whether he will seek clemency from Warner.