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Unless the U.S. Supreme Court or Gov. Mark R. Warner intervene, Robin Lovitt will be executed by injection Monday night for a 1998 murder in Arlington County.
Lovitt's lawyers have appealed to the high court, and on Thursday they filed a clemency petition with Warner's office asking that Lovitt's death sentence be commuted to life, in part because evidence has been destroyed and cannot be subjected to new DNA testing.
Meanwhile, William C. Thompson, a professor of criminology, law and society and a DNA expert at the University of California, Irvine, said that while the evidence has been destroyed, there is still a way that earlier, inconclusive DNA testing might be clarified.
The state lab should still have computer files from the original DNA results and those electronic files could be re-examined, Thomson said yesterday.
In recent years, new techniques have been developed for the analysis of such data, analogous to the enhancement of a digital photo by a computer program, Thompson said.
"I can't say for sure that that analysis would clarify matters, but there is certainly a good chance that it might," he said. "It just seems to me as a citizen that is something you would want to know before proceeding with an execution."
However, a June 21 request for the electronic data by Lovitt's lawyers was turned down.
Ellen Qualls, spokeswoman for Warner, said yesterday it is the governor's position that a recent review by five independent scientists that found no problems with the state lab's work in the Lovitt case is sufficient.
In a letter yesterday, one of the scientists, Arthur J. Eisenberg, told the governor's office: "Please be advised that all five members of the scientific review team have now completed our review of the [state lab] file, data and laboratory notes involved in this case.
"We conclude that the case contains no technical procedural errors or deviations from accepted protocol that may have substantially affected the integrity of the results in that case. Similarly, in our view, the case contains no interpretive conclusions that are not scientifically supported," wrote Eisenberg.
The scientists are reviewing more than 160 cases handled by the state lab as part of a study ordered by Warner after an independent audit sharply criticized the crime lab's performance.
Lovitt, 41, was on parole when he was arrested for the Nov. 18, 1998, capital murder of Clayton Dicks, an Arlington pool-hall manager stabbed six times in his chest and back with scissors.
According to the state, DNA played a marginal role in Lovitt's prosecution. Lovitt's lawyers disagree and say retesting might cast doubt on his guilt.
The evidence in his trial included three state DNA tests. One identified Dicks' DNA on the murder weapon, a pair of scissors. The other two tests, on Lovitt's jacket and on another part of the scissors, were inconclusive.
Dicks was the only employee at the pool hall about 3 a.m. A patron who entered around 3:25 a.m. saw a man behind the bar stab another man six or seven times. The witness later said he was "80 percent certain" that Lovitt had done the stabbing.
Police discovered a pair of scissors missing from the pool hall in a wooded area nearby. A pool hall employee testified that Lovitt, who once worked there, had helped her open the cash register months earlier by wedging a pair of scissors into it.
On the same morning of the murder, Lovitt went to the home of a cousin who lived near the pool hall. Lovitt had the drawer from the pool hall cash register. His cousin opened the drawer and they divided the money.
After Lovitt was arrested and put in jail, he told another inmate that he saw a Hispanic man stabbing Dicks and that he spotted the cash drawer on the floor, took it and ran. But he later told the inmate he stabbed Dicks.
In papers filed with the U.S. Supreme Court, the Virginia attorney general's office urged the justices not to consider Lovitt's appeal, noting the high court has already turned down his appeals twice.
The evidence in Lovitt's case was erroneously destroyed by the Arlington Circuit Court clerk's office just weeks after a new law went into effect requiring the preservation of such evidence.
If executed, Lovitt's would be the first execution in Virginia this year and the 95th in the state since the U.S. Supreme Court allowed the death penalty to resume in 1976.