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Students, professors examine death penalty

Maddie Hanna | Monday, April 18, 2005

Robin Lovitt seems like your stereotypical “nice guy.” Optimistic, friendly, intelligent, soft-spoken, talkative – those who have met him usually refer to him as likeable, noting how quickly he puts people at ease.So at ease that the Notre Dame students who met and spoke with him at Virginia’s Sussex State Prison almost forgot he was on death row.”We were all really struck – he’s such a nice guy,” senior Shane Lowenberg said. “If we hadn’t known his situation, we would have never guessed he was a convicted murderer.”In spring 2004, Lowenberg met with Lovitt through Professor Tom Kellenberg’s Capital Punishment Litigation course in Notre Dame’s Washington Program. Five years ago, Kellenberg brought the case to Kirkland & Ellis, a D.C. law firm headed by double Domer Tom Yannucci.Lovitt’s case has since become a pro bono project costing more than $2 million and involving more than a dozen lawyers, including public luminary Kenneth Starr, famous for his work during the Clinton-Lewinsky scandal and current dean of the law school at Pepperdine University.During Lovitt’s last round of appeals, the U.S. Court of Appeals for the 4th Circuit upheld his sentence on death row. The story, though, started over six years ago in Arlington, Virginia.

The storyThe night of Nov. 18, 1998, Lovitt, then 35, went into Champion Billiards Sports Café on Shirlington Rd. in Arlington, according to a March 14 Washington Post article. A day out of a detoxification program, the Post said, longtime drug addict Lovitt bought and smoked crack before entering the pool hall sometime after 3 a.m.Lovitt said he told night manager Clayton Dicks he was hungry, according to a police statement obtained by the Washington Post. After Lovitt ate and went to the bathroom, he came out and saw another man in a fight with Dicks. He went back into the bathroom, attempting to avoid the scene.Lovitt’s statement to police said that when he reemerged from the bathroom, the man had left and Dicks was dead. He grabbed $200 from the cash register and fled.”With a track record like mine, would you call for help? The first thing I thought was I better get the [expletive] out of here … The stupidest thing I could have done was grab the cash register, ’cause if I hadn’t, I wouldn’t be here now,” Lovitt said in the police statement.At Lovitt’s 1999 trial, prosecutors said Lovitt entered the pool hall to steal money but was confronted by Dicks who then stabbed Lovitt with a pair of scissors six times, the Post article said. One of the two customers who came in and called 911 testified of being 80 percent sure Lovitt was the assailant at his original trial. One of Lovitt’s cellmates testified to Lovitt’s confession – although lawyers at Kirkland and Ellis say Lovitt has always maintained his innocence.Lovitt never took the stand, but one of his sisters did testify, Starr said. However, her testimony proved damaging to Lovitt – something Starr believes could have been avoided.

Questions”At his original trial in Arlington Circuit Court, it is undisputed that his two defense lawyers didn’t investigate his family background,” Starr said. “The Supreme Court says you must do that, unless there’s a powerful argument not to.”The U.S. Court of Appeals for the 4th Circuit said Lovitt’s original lawyers – who were court-appointed – might have intentionally avoided thorough research into their client’s background, afraid of uncovering potentially detrimental information.Starr said after the guilt phase of the original trial, the defense lawyers talked to one of Lovitt’s sisters for five minutes during the jury’s deliberation – an inadequate measure that only scratched the surface of Lovitt’s history and ended up hurting his case, Starr said.However, Lovitt’s defense team considered another aspect of the case to be a greater travesty – the destruction of the scissors by a court clerk in May 2001.”A fair trial is guaranteed by the due process clause of the Fourteenth Amendment,” Starr said. “The idea of due process is fundamental fairness. To fail to turn over evidence that could be favorable to the defendant is a Brady violation.”This type of violation, established in the 1963 Brady v. Maryland Supreme Court case, occurs when the government fails to disclose material exculpatory evidence.The scissors were originally tested. DNA from the victim was found, but tests were inconclusive regarding the perpetrator’s DNA. Lovitt’s lawyers say further testing could have been done on the scissors that may have supported their client’s plea of innocence.But the U.S Court of Appeals for the 4th Circuit said the clerk’s destruction of the evidence was not in “bad faith,” as cited in an April 7 Washington Post article.”The court is not justifying the destruction of evidence, but emphasizing that the prosecution didn’t do it,” Starr said.Bridget O’Connor, Notre Dame class of 2000 and a lawyer at Kirkland and Ellis, said the evidence destruction in Lovitt’s case was “unprecedented” and violated both Virginia laws and clerk office policies.”In fact, two deputy clerks begged the senior clerk not to destroy the evidence because it was from a capital case, contained DNA and because the defendant had not been executed,” O’Connor said. “There has never been any reasonable explanation why these laws and policies were ignored, or why the clerk refused to listen to the pleas of his fellow clerks.”While O’Connor acknowledged the Court did not defend the evidence destruction, the action greatly impacted Lovitt’s case.”Destroying the evidence has manifestly deprived Mr. Lovitt of any meaningful opportunity to test his conviction on habeas,” she said.Kellenberg said in a just system, the evidence destruction should be a convincing factor in removing Lovitt from death row.”Given the fact that the Commonwealth of Virginia has destroyed all the evidence in his case available to exonerate him, including valuable DNA evidence, in violation of the state’s own laws and regulations, it would be a terrible injustice to put this man to death,” Kellenberg said.

Student experiencesNotre Dame students in the Washington Program helped with research for Lovitt’s case, studying his court proceedings and contacting family members to get information about his background.But students focused on the experience of visiting Lovitt in prison, something they all say they will never forget. During these past five years, close to 40 Notre Dame students have visited Lovitt, said Kellenberg, who estimates he has visited Lovitt approximately 20 times. Each semester, four students spend two hours with Lovitt discussing much more than the case.”The pinnacle of the experience was meeting with Robin,” senior Lucia Rajec said.Lowenberg described his group’s arrival at Sussex State Prison, a “huge facility in the middle of nowhere” where the group went through an extensive security check of metal detectors and pat-downs, having submitted names for a background check a month earlier.After going through “a series of what seemed like 10 to 12 doors,” each door closing before the next one opened, Lowenberg entered the general public’s recreation area. He recalls inmates on the other sides of the fences yelling the entire time, making especially obscene comments to girls.Lowenberg’s apprehension grew upon entering the meeting room – a converted cell much different from the room that he had expected with a glass separation and a telephone.”The guard announced that D.C. psycho killer John Allen Mohammad was [just caught and] in the cell next to us,” Lowenberg said. “That was weird.”Lovitt entered the room wearing foot shackles and handcuffs, the handcuffs being removed per Kellenberg’s request.”We just started talking, introduced ourselves,” Lowenberg said. “He basically said nothing’s off the table, ask whatever. That was pretty cool.”Lowenberg said Lovitt, a big Notre Dame football fan, greatly enjoyed the company and liked to hear news from the outside world.”He, first of all, is amazing,” junior Christin O’Brien said. “He’s so interested in what you’re doing.”O’Brien, who met Lovitt during fall 2004, said the two hours “flew by.” She remembers being am-azed at Lovitt’s optimism, how he talked about moving south and getting a dog once he got out.Junior Ryan Finlen, who was with O’Brien during fall 2004, said for Lovitt “it was not ‘if’ but ‘when.'”Lowenberg agreed, commenting on Lovitt’s faith in the system.”He won’t believe they would execute somebody who’s innocent,” he said.Students took special notice of Lovitt’s lucidity, noting how he read all his court proceedings, made cards for visitors and fellow inmates and served as the unofficial death row barber.”You would have thought being on death row would have messed with his head,” Lowenberg said. “But he said, ‘There are a lot of crazy guys here.'””It was really hard when we walked out seeing them handcuff him again, knowing where he was going, to a jail awaiting death,” Lowenberg said.

Reaction to the decision”I was disappointed, but I was not shocked in light of the questioning at oral argument,” Starr said. “I was obviously hopeful the court would be concerned by one or more of the arguments.”Starr said the decision to uphold Lovitt’s death sentence represented inherent problems in the U.S. justice system.”This is a very grim reminder of the frailties of our system and the need to be vigilant that the death penalty system operates with profound fairness,” he said.Yannucci echoed Starr’s determination.”We’re prepared to exhaust every avenue we can,” he said. “We feel very bad for the victim in this case but we’re committed as lawyers to make sure Robin Lovitt gets the best and most effective legal defense he can against the death penalty.”After hearing of the Court’s decision, students were disillusioned.”This final decision in Robin’s long journey of legal proceedings highlights the deep flaws in our justice system,” Rajec said. “When the courts are willing to uphold, over and over again, a decision to put someone to death in light of evidence that calls into question the absolute certainty of his guilt, you have to wonder how it is possible that the death penalty – the ultimate, irreversible punishment – continues to be an accepted feature of justice in our nation.”While Finlen acknowledged one positive side of Lovitt’s case, he also saw flaws.”On one hand, I suppose the fact that a poor, 41-year-old, African American man on death row is receiving top-notch legal assistance through multi-appeals speaks very highly of our system’s commitment to equal protection under the law,” he said. “However, I don’t see much virtue in putting Robin to death with only a weak case built on circumstance as justification.”

What comes next”We are filing a petition for rehearing in the Fourth Circuit Court,” Starr said. “This is another step in the process, and we’re marching on.”While Starr would not comment on clemency, Kirkland and Ellis said they were preparing to submit petitions to Governor Mark Warner.”Kirkland and Ellis will continue to pursue all available channels for relief,” O’Connor said. “In a death penalty case, this would typically include a petition for rehearing and for rehearing en banc before the Fourth Circuit Court of Appeals, a petition for certiorari before the United States Supreme Court, and a petition for clemency before the Governor of Virginia.”Both Yannucci and Kellenberg said they were grateful for letters to Governor Warner written by University President Father Edward Malloy and president emeritus Father Hesburgh.Regarding the degree to which prominent members of the Notre Dame community could influence the case, Yannucci said he thought letters from Malloy and Hesburgh could help the clemency petition.”They’re widely respected national figures,” Yannucci said, “We don’t want to presume what Governor Warner’s going to do, but we think this is a strong case for clemency.”Students said both Malloy and Hesburgh seemed very willing to help in whatever way possible and agreed to write letters to Governor Warner.