Gov. Mark R. Warner (D) granted clemency to Arlington resident Robin Lovitt on Tuesday, the day before he was scheduled to be executed, citing the destruction of DNA evidence in the case by a court clerk.
If executed, Lovitt, 42, would have been the 1,000th person put to death in the United States since the reinstatement of the death penalty in 1977, following a 10-year moratorium.
Lovitt was convicted of the 1998 fatal stabbing of Clayton Dicks during a robbery of Champion Billiards, a pool hall in Shirlington. Dicks, a nighttime manager, was stabbed six times with a pair of scissors.
During the appeals process an Arlington County court clerk discarded the suspected murder weapon and Lovitt's blood-stained jacket, along with other evidence. Warner said in a statement that this violation of state law was sufficient reason to commute Lovitt's sentence to life in prison without the possibility of parole.
"In this case, 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," Warner said in the statement. "The Commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly."
Eleven prisoners have been executed during Warner's tenure and this was the first time he granted clemency to an individual on death row. Lovitt's execution would have been the 95th in Virginia since 1977, the second most of any state in the nation, behind only Texas.
Three hours before Lovitt was to be put to death on July 11, the Supreme Court voted to stay the execution. In October the justices refused to hear his appeal, surprising many who expected it would reverse the decision of a lower court that had allowed the execution to proceed.
Some prominent death penalty proponents, including former Republican gubernatorial candidate Mark L. Earley, appealed for Lovitt's sentence to be commuted, arguing that the procedure's integrity would be damaged if an innocent man was put to death.
"The governor made the right decision," said Earley, who was Virginia's Republican attorney general from 1998-2001 and lost to Warner in the subsequent gubernatorial race. "This would have undermined public confidence in the death penalty in Virginia and sent the signal that laws in Virginia don‚t need to be followed, in regard to the preservation of DNA evidence."
Opponents of the death penalty lauded the governor's decision, but questioned why Lovitt had been allowed to languish on death row for so long.
"Intervention should have come years ago when the evidence was first destroyed," said Jack Payden-Travers, executive director of Virginians for Alternatives to the Death Penalty. "A potentially innocent man is now preparing to spend the rest of his life behind bars because of the actions of a court clerk."
Lovitt was transferred to Greensville Correctional Center in Jarratt on Nov. 26 and was scheduled to die by lethal injection at 9 p.m. on Wednesday, Nov. 30.
In a phone interview several hours before Warner granted clemency, Jane Lovitt, Robin's wife since 2000, said her husband was "praying" and "optimistic" that the governor would spare his life. "He is in very good spirits, hopeful and at peace with himself. He is just reading books, writing poetry and living his everyday life."
Lovitt's attorneys at the Kirkland & Ellis law firm, who include former White House independent counsel Kenneth W. Starr, released a brief statement following Warner's announcement:
"Kirkland & Ellis, LLP is gratified that Governor Warner has exercised his executive power of clemency to commute Mr. Lovitt's sentence to life in prison. We believe this decision to be entirely proper given the extraordinary circumstances of Mr. Lovitt's case."
The state argued that Lovitt entered the pool hall, where he used to work as cook, and attempted to pry open the cash register with a pair of scissors. When Dicks confronted him, Lovitt stabbed Dicks six times with the scissors, prosecutors contended. The pair of scissors was found in the woods behind the pool hall.
Lovitt has maintained his innocence and said he went to the pool hall that night to ask Dicks for money. Lovitt said that when he came out of the pool hall bathroom he saw Dicks and another man fighting. Lovitt, who admitted to smoking crack cocaine earlier in the night, returned to the bathroom and eventually left the establishment with the cash register after he found Dicks dead.
According to the Richmond-Times Dispatch, the only witness in the case, Jose Alvarado, told a private investigator earlier this month that Lovitt should not be executed because he was not positive Lovitt murdered Dicks.
At a preliminary hearing Alvarado did not identify Lovitt as the assailant, but during the trial said he was "80 percent sure" he saw Lovitt stab Dicks.
Casel Lucas, a fellow inmate of Lovitt's, claimed Lovitt confessed to the murder, though doubts arose during the trial about the veracity of Lucas‚ assertion.
Initial DNA tests could not prove whether Lovitt's sweat was on the scissors and tests on the blood on Lovitt's jacket were inconclusive.
Just weeks after the Virginia General Assembly passed legislation requiring all biological evidence in death penalty cases to be preserved, an Arlington deputy court clerk threw out the jacket, scissors and other evidence to make space in a storage room.
In an interview following the Supreme Court's decision, Emily Lucier, spokesman for state's attorney general, said the DNA evidence was not a critical element of the case and Lovitt was found guilty based on other "compelling evidence," including eyewitness testimony.
During a February hearing before the 4th U.S. Circuit Court in Richmond, Starr argued that defense attorneys in Lovitt's initial trial failed to present evidence, including details of childhood abuse, which could have prevented a death sentence.