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Clemency Stops an Execution in Virginia

Published: November 30, 2005

WASHINGTON, Nov. 29 - Gov. Mark Warner of Virginia granted clemency Tuesday to a convicted killer, declaring that the loss of a crucial piece of evidence had persuaded him that the man should not be put to death as scheduled on Wednesday.

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Virginia Dept. of Corrections, via Associated Press

Robin Lovitt's execution would have been the 1,000th since 1976.

Justices Refuse to Hear Case of Condemned Virginia Man

Chief Justice Stays Execution for Death Row Inmate in Virginia

Mr. Warner's decision, in the case of Robin Lovitt, blocked what would have been the 1,000th execution in the United States since the Supreme Court reinstated capital punishment in 1976.

The case has been closely watched, because of the milestone Mr. Lovitt's execution would have marked, because the former independent counsel Kenneth W. Starr worked on Mr. Lovitt's behalf and because the case was viewed as having possible political implications for Mr. Warner, a Democrat who is believed to be weighing a run for the presidency in 2008.

"I believe clemency should only be exercised in the most extraordinary circumstances," Mr. Warner said. "Among these are circumstances in which the normal and honored processes of our judicial system do not provide adequate relief - circumstances that, in fact, require executive intervention to reaffirm public confidence in our justice system."

The improper discarding of evidence - the pair of scissors that Mr. Lovitt was convicted of using to kill a pool hall manager in Arlington in 1998 - was just such a circumstance, said Mr. Warner, who had never before granted clemency in his four years in office, a period in which 11 men have been executed.

Mr. Warner said before the announcement Tuesday that he had agonized over the Lovitt case like no other. "The commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly," he said in his clemency statement. "After a thorough review, it is my decision that Robin Lovitt should spend the rest of his life in prison with no eligibility for parole."

Clemency was the last hope for Mr. Lovitt, 42, after the Supreme Court declined on Oct. 3 to hear his latest appeal despite having granted a stay of execution three months before.

The scissors were thrown out by a Virginia court clerk, after Mr. Lovitt's conviction had been affirmed by the Virginia Supreme Court but before he filed a federal court petition. Mr. Lovitt was accused of using them to pry open a cash register drawer and to stab the pool hall manager, Clayton Dicks, who caught him in the act.

The DNA testing available at the time showed the blood on the scissors to be that of the victim but was inconclusive for the DNA of anyone else. Nor were Mr. Lovitt's fingerprints on the scissors. His lawyers argued that a more modern test of the scissors could show that he was innocent, and that losing the weapon had resulted in "profound unfairness."

Mr. Starr also tried to persuade the Supreme Court that Mr. Lovitt's original lawyer had failed to present evidence of severe childhood abuse by a stepfather. "The jury cannot reliably impose the death sentence without considering the petitioner's individual life history," Mr. Starr said in a brief.

Mr. Starr had sought to overturn a ruling last April by the United States Court of Appeals for the Fourth Circuit, in Richmond, which concluded that the conviction should stand, despite the discarding of the scissors.

The court noted that two witnesses testified they were almost certain Mr. Lovitt was the man they saw stabbing and kicking; that Mr. Lovitt's cousin testified that the defendant had showed up at the cousin's house in the middle of the night with a cash drawer, and that a fellow inmate testified that Mr. Lovitt had confided to killing Mr. Dicks.

Mr. Lovitt, who had previously worked at the pool hall, has said that he was in the bathroom at the time of the killing, and that he took the cash drawer only after finding Mr. Dicks already dead.

The Fourth Circuit held that Mr. Lovitt's trial lawyers had defended him competently, and under difficult circumstances: had they chosen to have Mr. Lovitt's relatives testify about his background they would have invited cross-examination about the relatives' criminal records, and, most likely, Mr. Lovitt's own convictions for assault, attempted robbery, larceny and other crimes.

Mr. Warner, who made a fortune in the telecommunications industry, has been mentioned as the kind of Democrat who could appeal to business-minded conservatives, especially in the South, if he runs for president. Commuting the death sentence of a convicted murderer could leave Mr. Warner open to being attacked as soft on crime in a general election. But in Democratic primaries in which Mr. Warner would probably be among the more conservative candidates, granting clemency to Mr. Lovitt might be viewed as a plus by the party's powerful liberal wing.

This year's Virginia governor's race may have provided evidence that the death penalty has faded as an electoral issue. The race was won handily by Lt. Gov. Tim Kaine, a Democrat who opposes capital punishment on religious grounds, even though his opponent hammered him as soft on crime. Analysts believe the popularity of Mr. Warner, prohibited by term limits from running again, helped negate the attacks.