|Jury Not Told All in Va. Slaying, Famed Lawyer
By Donna St. George
Robin Lovitt was deep in the throes of a major relapse. He had sold his television for $20, he would later tell police, and used the money for beer and cigarettes. Then he bought two rocks of crack in what became a long night that ended in an Arlington pool hall on Nov. 18, 1998.
Across the Potomac River that day, Kenneth W. Starr was rehearsing a much-anticipated speech that would mark his first public testimony to explain the findings of his investigation of President Bill Clinton. Amid accusations that his four-year, $40 million probe had become a political witch hunt, Starr would make his case to the public, partly in his own defense.
The next morning, nine miles from the televised drama on Capitol Hill, police in Arlington were immersed in their investigation of a homicide at Champion Billiards Sports Cafe. The night manager, Clayton Dicks, 45, had been stabbed to death and a cash register drawer stolen.
The jury in Robin Lovitt's case was not told about several things, says Kenneth W. Starr, right, shown with Charles Bakaly during the 1998 presidential impeachment inquiry. Among those were Lovitt's upbringing and a report challenging the validity of the murder weapon. (Gary Hershorn -- Reuters)
|Lovitt, then 35, was soon arrested.
It was a time of turning points, in worlds that do not often intersect. Only recently, long after Lovitt was sent to Virginia's death row, have the paths of Starr and Lovitt converged around the lesser-known events of that November.
Starr had left his job as independent counsel and returned to his law firm, Kirkland & Ellis, where Lovitt's case had become a pro bono project. Last year, Starr became one of Lovitt's lead attorneys after being disturbed by how much he says went wrong, both in Lovitt's childhood and in his legal proceedings, including the destruction of nearly all physical evidence from his trial.
"A compassionate and decent society has to ensure that a death penalty regime is as error-free as humanly possible and as fair as humanly possible," Starr said in an interview. For Lovitt, he said, the system has failed that test. Moreover, he said: "He is maintaining his innocence, and as his counsel, I am maintaining his innocence."
As Starr talked, he sounded in moments not so much like the hard-driven prosecutor who did not let up on Clinton, but more like the committed volunteer who once taught high school students in Anacostia about the Constitution.
Full Cast of Lawyers
Few people as poor as Lovitt have such luminaries as Starr as their attorneys, particularly on death row. Among the roughly 3,400 people who await execution in 38 states, most have little or no funding for private lawyers. Some have no legal counsel.
"We just can't find enough lawyers for everyone who needs them," said Robin Maher, director of the Death Penalty Representation Project of the American Bar Association, who said hundreds of death row inmates need attorneys.
"Many of these defendants have never had a persuasive, effective, zealous advocate before," she said. Volunteer lawyers, she added, frequently turn up new evidence and "have had successes that include exonerations and new trials."
When Starr took on Lovitt's cause, he was a supporter of the death penalty and among the nation's best-known lawyers. He did not so much find Lovitt's case as the case found him -- through a circuitous route by way of his law firm and its connection to a Washington program for undergraduate students at the University of Notre Dame.
Now, Starr is part of a full cast of lawyers and assistants. In all, 40 Notre Dame students have visited Lovitt in prison, a handful each semester. More than a dozen lawyers at Kirkland & Ellis have investigated possible trial errors, done legal research, hired experts and prepared briefs in a $2 million effort co-led by the nonprofit Virginia Capital Representation Resource Center, which handles many death penalty cases.
How Starr -- now the law school dean at Pepperdine University in Malibu, Calif. -- may change Lovitt's fate is unclear. His arguments in June failed to convince a federal District Court. In February, he went to the U.S. Court of Appeals for the 4th Circuit, which is expected to rule in the next month or so.
"Whether it makes a difference that he is Ken Starr, a onetime federal judge and solicitor general, or whether it makes a difference that he is Ken Starr, independent counsel in the Whitewater investigation with a certain political perspective, it's hard to know," said John G. Douglass, an associate professor of law at the University of Richmond. "Certainly, Ken Starr catches people's attention when he walks into a courtroom."
A.E. Dick Howard, a law professor at the University of Virginia, noted that Starr probably knows most of the judges who will decide the case. "He's almost bound to have met them, to know them, but . . . he'll have to make his case as a lawyer."
Still, Howard said, that's where Lovitt is fortunate. Starr "is one of the most seasoned lawyers at the Washington bar." For a defendant without resources, he said, "if you catch the eye of someone of that stature, it immensely improves your chances."
What Shaped Their Lives
Kenneth Starr was 17 when Robin Lovitt was born, and their lives could hardly have been more different. The son of a conservative minister in Texas, Starr grew up in a home where there was no drinking, cursing or smoking -- not even dancing, in keeping with the family's Church of Christ values. He memorized Bible verses as a child, made top grades and was voted "Most Likely to Succeed" in high school.
As a young man, he considered politics and teaching college. He graduated from George Washington University, received a master's degree at Brown and then opted for law school at Duke. There, he paved the way for his clerkship with then-U.S. Chief Justice Warren E. Burger. By 34, Starr joined the Reagan administration. At 37, he was a federal appeals court judge, and at 42, U.S. solicitor general, the government's top lawyer.
Starr's public image as rigid and doctrinaire during the Clinton years belies a more nuanced history. Although he ruled against an affirmative action plan, he made decisions that favored First Amendment rights and a military officer's right to wear a yarmulke with his uniform. He joined the evangelical McLean Bible Church, volunteering with its inner-city ministry, and helped lead a Bible study for inmates at the Fairfax County jail.
Lovitt, by comparison, grew up the eldest of 12 children in a small, chaotic home in Arlington, where his alcoholic stepfather abused his wife and children, according to affidavits submitted during his appeals. One sibling recalled Lovitt being beaten with a telephone cord. Another recalled a nighttime beating as Lovitt lay in bed. When the abuse was not physical, it was often sexual. One sister testified that her father randomly chose whom to molest when he came home drunk after work; another testified that she feared her first child had been fathered by him.
Lovitt's mother and stepfather used drugs, and his stepfather sold them, according to court records. Lovitt followed suit at a young age -- drinking his first beer at 5, smoking marijuana at 7, turning to speed and heroin as a teenager and then PCP and crack cocaine. Along the way, he was arrested, sent to a juvenile detention center and dropped out of school. By 35, he had spent 15 years in prison, mostly on burglary, drug and larceny charges.
In what his attorneys suggest in a brief was a sign that "all may not have been well" in Lovitt's family, all five of his brothers had been to prison and at least two sisters had criminal records.
At times, Lovitt tried to turn himself around. He received a GED diploma. In 1998, he showed signs of improving while completing 169 days of a county substance-abuse program. Afterward, he landed a job as a cook at Champion Billiards on Shirlington Road and enrolled in culinary classes at Stratford College.
A co-worker at the pool hall was impressed. "He appeared to be getting himself together," recalled assistant manager Jennifer Wright. But in fall 1998, Lovitt did not show up for shifts. When he did finally come around, he was noticeably unkempt and asked to borrow money, co-workers said.
In early November, he entered a detox program. He also applied for a long-term residential drug treatment slot, describing his goal bluntly: "I've used drugs all my life and I need all the help I can get."
Out of detox less than a day, Lovitt bought crack, smoked it with friends and eventually made his way to the pool hall where he once worked. It was after 3 a.m. on Nov. 18, 1998.
Lovitt said he told Clayton Dicks, the night manager, that he was hungry and tired, according to his police statement. "Don't worry about it. I gotcha," he recalled Dicks saying as he went to the kitchen to whip up some eggs. Lovitt ate, then stopped in the restroom as he was leaving. Upon coming out, he told police, he saw a man in a suit fighting with Dicks and ducked back into the restroom, thinking "it wasn't my business."
Lovitt said that when he came out again, the place was empty and Dicks was dead. Fearing he would be accused, he decided to flee, he said -- then spotted the cash register, snatched the drawer of money with about $200 and rushed off.
"With a track record like mine, would you call for help?" he asked a detective under police questioning. "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 did not fare well at his 1999 trial, where prosecutors told a starkly different story. They said Lovitt came to the 24-hour pool hall to steal money when no one was there. Confronted by Dicks, they said, Lovitt grabbed a pair of scissors from the bar and stabbed him six times. Two customers walked in on the scene and called 911, they said; one told jurors that he was 80 percent sure Lovitt was the assailant. A cellmate of Lovitt's testified that Lovitt had confessed. Lovitt did not take the stand.
The cash register drawer was found at Lovitt's cousin's house, where Lovitt had admitted bringing it in his police statement.
After two hours of deliberation, the jurors convicted him of first-degree murder and robbery. They later recommended that he be put to death.
Mary Dicks, mother of the victim, took heart in the sentence, recalling her son as a quiet, reliable man who did not smoke or drink and had wedding plans. A single father who lived in Northeast Washington, he had been raising two boys whom a one-time girlfriend had left in his care years earlier.
Lovitt "needs the electric chair," she said. "He gave Clayton the electric chair, and Clayton won't be back. Let him know what death is."
When Starr came to the case, Lovitt had been on death row for nearly four years. He had always maintained his innocence. His attorneys at Starr's firm won a new evidentiary hearing in 2002 but have not been able to persuade a court to throw out the death sentence or conviction. Now their arguments are in the final stages.
Among their biggest concerns is a court clerk's decision in May 2001 -- against the warnings of two fellow clerks -- to discard nearly all evidence in Lovitt's case, in spite of his continuing appeals. "The fact that evidence would be destroyed where additional testing could be done is extraordinary and, frankly, outrageous," Starr said in an interview.
The lack of evidence left Lovitt's attorneys with no way to do further DNA testing on the scissors that prosecutors identified as the murder weapon. At trial, experts said that the victim's DNA was identified on the scissors but that other DNA tests were inconclusive.
"No one ever took apart the scissors, and we know from many other cases that criminalists often uncover important blood evidence in the screws or joints of scissors," said Peter Neufeld, co-founder of the Innocence Project in New York, who has worked on DNA-based appeals for scores of inmates and testified at Lovitt's 2002 hearing.
DNA technology and training have become far more sophisticated since Lovitt's 1999 trial, Neufeld pointed out. To proceed with an execution in spite of missing evidence, he said, "constitutes a gross injustice."
"I know no [other] case where the evidence has been lost or destroyed within two years of conviction," he said.
Prosecutors have successfully argued that the destruction of the evidence was a mistake by a clerk and that there was no proof of "bad faith." The courts said it was not clear that the destroyed items were "potentially useful."
"This case involves substantial evidence of Lovitt's guilt in the stabbing of an innocent person, and the jury had all of the facts when they considered the case," said Emily Lucier of the Virginia attorney general's office, which would not comment further on the case.
Starr argued that the jury was kept in the dark on other important points, including a medical examiner's statement that the scissors were too short to have caused the victim's deep wounds. The jury also knew nothing of Lovitt's "horrific" childhood, Starr said. Juries often recommend life in prison -- rather than death -- when shown evidence of childhood abuse, he argued.
"Every example in [Lovitt's] life was a bad example," Starr said. "Shouldn't a jury know that?" He added later: "As we all look back to the household where we grew up, most of us were loved and not abused."
Reflecting on his first case involving the death penalty, he said: "This is a moral matter. This is a decision by citizens to send one of their fellow citizens to death." It takes only one juror, he said, to decide. "There but for the grace of God go I."
A case cannot help but become personal when one man has been murdered and when another faces death, he said. At another point, Starr spoke of Lovitt's problems: "He needed to be drug-free, and now he is drug-free."
In briefs, prosecutors argue that Lovitt's background was not as harsh as portrayed, and they say that defense attorneys did not sufficiently document the abuse they say happened. They also dispute that statements from the medical examiner were improperly withheld.
Starr argued: "I think the death penalty is appropriate under very extreme circumstances, and this is a tragic situation . . . but this [murder] is not the kind of horrible, depraved, cruel, continual condition visited upon one or more persons that the death penalty should be reserved for."
The latest briefs for both sides total 167 pages, all of which Lovitt has read on death row in southeastern Virginia. He was not available for an interview at this legal juncture, but a visitor from Notre Dame said that Lovitt reads everything from novels by John Grisham to books on spirituality. Described as talkative and personable, Lovitt, now 41, is barber to many of the other men on death row.
Since Lovitt arrived five years ago, 19 men have been executed in Virginia. Last year, Lovitt made it beyond his first scheduled execution date. If the appeals court rules against him in the coming months, another execution date probably will be set. If other unfavorable rulings follow, attorneys said, he could be dead by summer.
Staff researcher Bobbye Pratt contributed to this report.