J'Accuse, Virginia

Several years ago, I volunteered with a group that protested the death penalty in Virginia by meeting at an old, historic church cemetery to mark each execution. At the time, it felt to me like we were meeting every week. In fact, we were. There were eleven executions in the great State of Virginia that year.

In fact, only Texas executes more people than Virginia each year. But it's not for lack of trying. Texas is a larger state with a bigger death row population. However, Virginia works hard to be number two.

It works so hard at it that it has something called the “21 Day Rule.” Even by the most gung ho pro-death penalty standards, the 21 Day Rule is a pretty bizarre regulation. After twenty one days, somebody convicted of a capital offense can no longer appeal, even if brand new evidence is discovered that proves his or her innocence. In fact, a former attorney general, who ran unsuccessfully for governor, Mary Sue Terry, once famously said, “evidence of innocence is irrelevant,” in answer to an appeal to introduce new evidence from a prisoner sentenced to death. And she was the Democratic candidate, no less.

Parts of the 21 Day Rule were modified to allow newly discovered DNA evidence to be admitted on appeal even after twenty one days. But, as Virginians Against the Death Penalty points out, newly discovered DNA evidence still seldom leads to exoneration. In most cases, it's more mundane types of evidence, including last-minute confessions by the real killer, that frees wrongly convicted people. But even an eleventh hour confession by the actual guilty party is still not admissable for an appeal in Virginia after twenty one days have passed.

So, there’s a man, who, according to this report by Donna St. George, “could be dead by this summer.”

But he has a surprising champion. Ken Starr!

Yes, that one. Kenneth Starr the overzealous Special Investigator who tried to get Bill Clinton impeached.

Starr’s firm, Kirkland & Ellis took on the case of Robin Lovitt as a pro bono project.

The facts of the case are simple. On the night of November 18, 1998, Lovitt, an addict who had been in trouble with the law before but was trying to clean up his act, had just gotten out of detox. But he had a bad relapse. He sold his TV set for $20 and bought two rocks of crack and smoked them with some friends. He then made his way to a pool hall, in Arlington, where he once worked. This was at about 3 a.m. After being fed by his old friend, the night manager, Clayton Dicks, Lovitt claimed that he stopped in the restroom. When he came out, he saw Dicks fighting with another man and ducked back into the restroom to avoid getting involved in the fight. When he ventured out again, the place was empty and Dicks was dead. Fearing he would be blamed, not unreasonable given his previous record and the fact that he had just gotten out of detox the day before, Lovitt ran. Unfortunately, before he did, he grabbed a drawer full of money from the cash register.

At his trial, of course, the police testified that Lovitt had come to the pool hall to steal the money in the first place. Let’s face it, that wasn’t an unreasonable assumption either. The police also testified that their hunch was that when the victim, Dicks, confronted Lovitt stealing, Lovitt grabbed a pair of scissors from the bar and stabbed him six times.

Two eyewitnesses testified that they were “pretty sure” Lovitt was the assailant. A cellmate also claimed that Lovitt had confessed. And the cash register drawer was found in Lovitt’s cousin’s house. The circumstantial evidence looked pretty bad for Lovitt.

After two hours of deliberation, the jury found him guilty and later recommended the death penalty.

With all this evidence against Lovitt, why is a legal luminary like Ken Starr involved?

Because crucial evidence that could exonerate Lovitt was destroyed. In May 2001, a court clerk destroyed the scissors that are alleged to be the murder weapon, despite the warnings of two fellow clerks. Virtually all the physical evidence was also destroyed at time by that same clerk.

Here’s what Peter Neufeld, co-founder of the Innocence Project in New York told the Washington Post writer Donna St George, “No one ever took apart the scissors, and we know from many other cases that criminalist often uncover important blood evidence in the screws or joints of scissors.”

DNA technology has gotten more sophisticated since Lovitt’s 1999 trial. According to Neufeld, “to proceed with an execution in spite of missing evidence constitutes a gross injustice.”

Yet in the spirit of Mary Sue Terry, Arlington county prosecutors have argued successfully that the destruction of evidence was a mistake and that there was no proof of “bad faith.”

Ok, perhaps not bad faith, and maybe not even true maliciousness. But at the very least, destroying evidence of a death row case in 2001, before the appeals process had run its course, was gross incompetence. Call me crazy here; but, civil service rules notwithstanding, this should be a firing offense. Both the clerk and the prosecutor who defended this action should be disciplined and dismissed.

Ken Starr is not an opponent of the death penalty. But he is troubled by the mistakes and the holes in this case. Here's what he said:

“A compassionate and decent society has to ensure that a death penalty regime is as error-free as humanly possible and as fair as humanly possible.”

Virginia has not done that by a long shot. It's not holding to Ken Starr's standard of justice. Unfortunately, it's holding to the standard of Mary Sue Terry, one of the last members of the old and impossibly corrupt Byrd Machine.