Scientific Testimony: An Online Journal

(From the Virginian-Pilot.  For more on the Lovitt case, click here)


Questions plague July 11 execution of Robin Lovitt
The Virginian-Pilot
© July 3, 2005
Last updated: 10:07 PM

THE SCHEDULED execution of Robin Lovitt on July 11 spurs the latest dust-up in the state’s intensifying scrutiny of capital punishment.

At issue is whether it’s proper to execute a man, one who proclaims his innocence, even though a clerk mistakenly destroyed evidence in the case.

If the scissors believed to be the murder weapon and clothing belonging to Lovitt still existed, questions unanswered during his 1999 trial might be settled by more sophisticated DNA tests available today. Any possibility of that evaporated the day the items were thrown away.

For Gov. Mark Warner, who — barring a U.S. Supreme Court reprieve — must weigh a clemency petition as the execution approaches, the clerk’s error forces Solomonic judgments:

How certain is Lovitt’s guilt?

What difference, if any, would it make if all of the unresolved questions about the DNA evidence were decided in Lovitt’s favor?

Lovitt, 41, was convicted of the 1998 stabbing death of the night manager at an Arlington pool hall, during an early morning robbery. From the moment the longtime drug abuser and former convict turned himself in, several days after the event, he has insisted that he did not murder Clayton Dicks, a single father raising two boys.

Lovitt acknowledges his presence at the pool hall, where he once worked, when the murder occurred. Coming out of the restroom, he says, he saw Dicks fighting with a man and ducked back out of the way. When Lovitt re-emerged, the man was gone. Needing money, Lovitt says he made a huge mistake. He grabbed the cash drawer and fled.

The prosecution’s take is far different. A relapsing drug addict, Lovitt came to the pool hall to steal money. Confronted by Dicks, Lovitt stabbed him six times with a pair of scissors that he and another employee had once used to pry open the cash drawer. Then he took the money and fled.

The cash drawer was recovered at the home of Lovitt’s cousin where, everyone agrees, Lovitt took it.

The convicted man had a motive, the opportunity to commit murder and the cash. For many a juror, that probably would suffice to establish guilt.

From that point on, however, the case becomes less airtight.

Two witnesses who walked in while the attack was under way, and then left to call police, couldn’t identify Lovitt. One said at trial that he was 80 percent sure Lovitt was the man. Closer to the actual event, the same man said he wasn’t certain.

No fingerprints from Lovitt were found on the alleged murder weapon or at the crime scene. None of the victim’s blood was found on Lovitt’s clothes. (More about that later.) The primary person linking Lovitt to the crime was a fellow inmate, who, it turned out, had testified in several other trials. The label “jailhouse snitch” comes to mind.

Former federal judge and special presidential prosecutor Ken Starr, who has stirred national attention as one of Lovitt’s habeas attorneys, calls the evidence “circumstantial and weak.”

Judge J. Harvie Wilkinson III of the 4th Circuit Court of appeals, which upheld Lovitt’s conviction, disagrees. Despite “a serious error in judgment in destroying the evidence,” Wilkinson wrote, Lovitt benefited from a system that overall is “as fair and conscientious as human beings can make it.”

But is that so? How much difference might an updated DNA reading on the destroyed items have made?

The answer depends in large measure on what the tests would have shown. It’s fair to say that discussion of DNA occupied a relatively minor portion of the overall trial testimony. But related comments weren’t negligible either.

Two issues emerged. First, a spot of blood on the scissors clearly belonged to the victim. A second stain, an unidentified substance, largely matched Dicks also. But one faint genetic marker, identified by the number “17,” could not have come from him.

The state analyst revealed that Lovitt had a “17” as one of two genetic markers at that point on the gene.

Did the jury see the link as significant? No one outside the jury room knows. Could an updated test have ruled Lovitt out altogether as a contributor to the stain? Yes, potentially.

At one point, the prosecutor called the second stain “not a big deal.”

Later, however, she observed that it could have come from sweat and that “you know when the defendant arrived at [his cousin’s house] he was sweating.”

And further, “What was on there was just one little piece, and it told you that there was an allele No. 17. And what you know is that the defendant has an allele No. 17.”

Ditto for a discussion of blood found at the waistline of Lovitt’s jacket. The state lab report was marked “inconclusive” as to the source of the blood. But that didn’t stop the prosecutor from intimating that it belonged to Dicks.

“Certainly it [blood from the victim] could have gotten on his clothing, and certainly there is blood on the jacket in the stomach area,” she noted in closing remarks.

In fact, however, lab notes strongly suggest that the blood actually belonged to Lovitt. An updated test almost certainly could have answered the question. Frankly, that’s information an appeals court or the governor should have had.

After reviewing various documents, here’s one person’s opinion:

Could a jury reviewing the evidence against Lovitt have reasonably concluded that he committed the crime?

Absolutely.

Is the evidence against him foolproof?

No.

Might updated DNA testing have clarified the matter somewhat?

Yes, potentially.

Should he then be executed?

For opponents of the death penalty, such as me, that’s not a hard call. Certainty ought to be a given. The real challenge is to the majority of Virginians who favor capital punishment.

For them, when it comes to taking a life, how much doubt is acceptable? How much error?

Given all we have learned about the reality of wrongful convictions in seemingly airtight cases in recent years, is a “reasonable” execution still good enough?

Margaret Edds is an editorial writer for The Virginian-Pilot. E-mail her at margaret.edds@pilotonline.com



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