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Lovitt granted clemency by Va. governor

Maddie Hanna | Wednesday, November 30, 2005

Convicted murderer Robin Lovitt watched waves of Notre Dame students come and go through the University’s Washington Program while cycles of legal appeals bought him time on death row – until the day before his scheduled execution, when Virginia Gov. Mark Warner, troubled by the destruction of DNA evidence, granted Lovitt clemency.

Warner issued a statement Tuesday evening that commuted Lovitt’s sentence to life in prison without parole, just before his scheduled Wednesday night execution by lethal injection.

Lovitt was slated to be the 1000th person executed in the United States since the Supreme Court reinstated the death penalty in 1976, a distinction that drew national media coverage in recent weeks.

“In this case, the actions of an agent of the Commonwealth, in a manner contrary to the express direction of the law, comes at the expense of a defendant facing society’s most severe and final sanction,” Warner said in the statement. “The Commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly.”

Approximately 40 Notre Dame students have met Lovitt – who was convicted in 1999 of murdering a man with a pair of scissors – while taking Professor Tom Kellenberg’s capital punishment litigation course in the Washington Program. Two of those students, seniors Christin O’Brien and Ryan Finlen, have been following Lovitt’s case closely since meeting him in fall 2004.

“I’m ecstatic,” O’Brien said. “I think it’s definitely the right decision. They worked tirelessly on that … He’s a great guy.”

Kirkland & Ellis, a D.C. law firm headed by double Domer Tom Yannucci, handled Lovitt’s defense, and so did former Whitewater independent counsel Ken Starr.

Finlen returned to D.C. this summer as an intern for Kirkland & Ellis, where he spent 10 weeks working on Lovitt’s clemency petition. He had been at Kirkland & Ellis for slightly more than a month when the Supreme Court granted Lovitt a stay on July 11, his original execution date.

“We were pretty excited [in the office],” Finlen said of the July 11 decision, which came hours before the scheduled execution.

The Court’s Oct. 3 decision not to hear Lovitt’s case came as “kind of a blow, really,” Finlen said. “One more option not available.”

Lovitt’s case focused largely on an Arlington court clerk’s destruction of DNA evidence that defense attorneys said could have been used in his appeal to prove the innocence Lovitt has maintained from the beginning.

Other controversial aspects of the case included the validity of a jailhouse snitch’s testimony against Lovitt and the initial defense team’s failure to investigate Lovitt’s troubled childhood background – something the Supreme Court has explicitly required in the past, Starr told The Observer last April.

Finlen is “absolutely thrilled” with Warner’s decision and called it “great news” for both Lovitt and his attorneys.

Kirkland & Ellis released a statement Tuesday commending Warner’s decision as “entirely proper given the extraordinary circumstances of Mr. Lovitt’s case.”

But while Lovitt’s sentence was commuted, Finlen said he thought the decision could actually strengthen Virginia’s capital punishment system.

“Robin is saved, but on the other hand, this may provide a legitimacy to the death penalty in Virginia,” Finlen said. “Proponents [of the death penalty] will likely say that the governor’s actions indicate that clemency power is providing the necessary failsafe to capital punishment.”

In his statement, Warner said clemency should be reserved for “the most extraordinary circumstances.”

“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,” Warner said.

The then

Notre Dame law professor Richard Garnett said challenges to the death penalty – a practice currently allowed in 38 U.S. states – have been present for decades, but not seriously considered, since capital punishment is included in the U.S. constitution.

But in 1972, the landmark Furman v. Georgia case prompted the Supreme Court to void the death penalty statutes of 40 states and commuted 629 death row sentences, according to information provided by the Death Penalty Information Center.

Garnett said while the Furman case did not say the death penalty was “always and everywhere unconstitutional,” it required the modification of state statutes to include two key legal buzzwords: “narrowing” and “individualization.”

“The death penalty has to be administered using statutes more narrowly crafted,” Garnett said. “It’s not for every murder, but ‘aggravated’ murders … and the jury must consider potential mitigating circumstances.”

In 1976, the Gregg v. Georgia case presented revised state statutes to the Supreme Court, which approved the changes and made the death penalty permissible as outlined by the new statutes.

“The pipeline started again,” Garnett said. “Capital cases take a long time … [so it] took a while for the pipeline to start flowing.”

The complex process meant a “backlog” of cases, which accounts for the increased rate of executions in the 1990s, Garnett said.

The now

Political science professor Peri Arnold said he felt debate about capital punishment has increased in recent years.

“We increasingly become sensitive to the racial disparity in capital punishment,” Arnold said. “That leads some people to think there’s injustice in the death penalty.”

The other major point of debate, Arnold said, is “increasing suspicion that not everybody who goes to their death is not necessarily found guilty.”

The potential for innocence was a key point in Lovitt’s case and the reason former Illinois governor George Ryan instituted the nation’s first moratorium on state executions in 2000.

“We’ve found some [who have been executed] innocent,” Arnold said. “Have we sent some people to their deaths?”

Law professor Jay Tidmarsh said while “there’s always argument about whether or not [the death penalty] is really a deterrent,” innocence is a different kind of argument.

In an imperfect world, “we struggle with the fact of imperfection,” he said.

And Tidmarsh said innocence doesn’t necessarily mean freedom from punishment.

“You don’t have a federal constitutional right to be released from custody because you’re innocent,” Tidmarsh said. “It may sound bizarre, but it’s true … as long as procedural [aspects] are fair.”

Garnett mentioned debate about racial issues, that some people argue the current system is not “colorblind.”

Arnold also cited a religious aspect to recent discussion – the Catholic Church’s stand against capital punishment, a position voiced by the late Pope John Paul II.

For Garnett, who believes the death penalty should be abolished because “it distorts our law, and it costs too much, and it doesn’t yield significant benefits,” it’s this last point that is the most important, the “deeper reason.”

“I’m inclined to agree with the late Pope,” he said. “It’s more consistent with the culture of life.”

Finlen said his experience working on Lovitt’s case and researching the death penalty for a project through the Hesburgh Program in Public Service opened his eyes to different sides of the issue and shifted his perspective.

“You have to have a foolproof system, or you can’t have one at all,” he said.