Robin Lovitt is sched­uled for exe­cu­tion on July 11 in Virginia despite doubts about his guilt and the state’s weak and cir­cum­stan­tial case against him. Lovitt’s attor­neys main­tain that DNA test­ing of evi­dence in his case would prove that he is not guilty of the 1998 mur­der of Clayton Dicks, but the tests are not pos­si­ble because a court clerk mis­tak­en­ly destroyed the evi­dence. Columnist Margaret Edds of the The Virginian-Pilot recent­ly wrote about the upcom­ing exe­cu­tion and the doubts that remain:

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.

…
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?
…
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.
…
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 (used as the mur­der weapon) 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 1 of 2 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 2nd 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?

(The Virginian-Pilot, July 3, 2005). See Innocence and Clemency.

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