Is an innocent man about to be put to death in Virginia?

Date published: 7/3/2005

CHARLOTTESVILLE--Robin Lovitt, who has been on death row since March 1, 2000, is scheduled for execution on July 11. Convicted of capital murder and robbery, Lovitt was sentenced to death on the murder charge, and to life in prison on the robbery charge.

Insisting that he was innocent of murder, although he did admit the robbery charge, he appealed to the Supreme Court of Virginia, but it was to no avail. Yet Lovitt knew that he had one last chance at freedom: the objective truth of DNA evidence.

During Lovitt's trial, low-level DNA evidence was deemed "inconclusive" as to whether he was the perpetrator. History has proven that previously inconclusive DNA evidence can later be deemed "conclusive" upon further analysis. The case of Earl Washington, Jr., who was convicted of rape and murder, illustrates this fact. Washington spent 9 on death row, only to be exonerated nine days before his scheduled execution when a re-examination of previously inconclusive DNA evidence proved his innocence.

In response to the alarming reality of inconclusive DNA evidence in the Washington case, Gov. Mark Warner ordered the re-examination of low-level DNA evidence for many death row inmates, including Lovitt. Although this was Lovitt's chance to be exonerated on the murder charge, he is awaiting execution because the DNA evidence that might have spared his life was destroyed.

Two clerks at the Arlington County Circuit Court testified that they advised their superior, Robert McCarthy, not to destroy the evidence from Lovitt's trial. But McCarthy destroyed it anyway, in violation of the law and in violation of Robin Lovitt's right to have the evidence re-examined.

Lovitt once again turned to the courts, appealing to the Supreme Court of Virginia, the District Court for the Eastern District of Virginia and the 4th Circuit Court of Appeals. At every stage, his claim was denied. The 4th Circuit even went so far as to declare that although McCarthy made a "serious error in judgment," Lovitt was not entitled to relief because he could not prove that McCarthy destroyed the evidence in "bad faith." The U.S. Supreme Court's subsequent refusal to hear the case has left Robin Lovitt without any further legal recourse.

Having exhausted his legal claims, Lovitt's last hope rests with Gov. Warner. However, that opportunity to do the right thing expires on July 11, when Lovitt is scheduled for execution. Gov. Warner is in a unique position to ensure that the right to a fair and just judicial process, afforded to every American by our federal and state constitutions, is not jeopardized by government carelessness. The governor's authority to commute death sentences is reserved specifically for situations like this one. Yet if Gov. Warner does not acknowledge the government's wrongdoing in this matter and fails to commute Lovitt's sentence to life in prison, the same injustice may occur in the future.

Date published: 7/3/2005