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.
A number of states are grappling with the question of whether the lethal injection drug Pavulon, also known as pancuronium bromide, paralyzes a condemned inmate's muscles in a way that masks horrific pain felt during an execution, a side-effect that experts say could violate of the Eighth Amendment's ban on cruel and unusual punishment. The Tennessee Supreme Court heard arguments about this issue in a death row case in June 2005 and a similar case is expected to reach the Kentucky Supreme Court soon. In May 2005, a Missouri inmate was given a last minute stay so that the U.S. Supreme Court could review his death penalty procedure case. His claim was denied 5-4, and he was later executed.
Retiring Justice Sandra Day O'Connor's evolving skepticism about capital punishment has played a significant role in a number of key decisions regarding the death penalty throughout her 24 years on the U.S. Supreme Court. During public appearances in recent years, she has often mentioned her concerns about innocence and the need to protect a capital defendant's constitutional right to adequate representation. In a 2001 speech she stated, "Serious questions are being raised about whether the death penalty is being fairly administered in this country. If statistics are any indication, the system may well be allowing some innocent defendants to be executed."
By a vote of 5-4, the U.S. Supreme Court reversed a lower court's grant of relief to Tennessee death row inmate Gregory Thompson. The U.S. Court of Appeals for the Sixth Circuit had announced that its initial denial of Thompson’s appeal was mistaken. After first denying Thompson’s habeas corpus petition, the Sixth Circuit discovered previously unconsidered evidence that Thompson was suffering from schizophrenia at the time of the offense.
Texas Governor Rick Perry has announced the appointment of the members of the state's new Criminal Justice Advisory Council, including three judges, two prominent state legislators, a defense attorney, a prosecutor, and 13 additional ex-officio members. The commission will study potential flaws and recommend changes to the state's justice system. This is the first group in many years to have broad-ranging authority to look at the Texas criminal justice system from arrest to final appeal.
The U.S. Supreme Court has agreed to hear a capital case challenging the standard of proof needed for claims of innocence based on new evidence. The Justices will consider an appeal filed by Paul House, a Tennessee death row inmate who says new DNA evidence proves he was wrongfully convicted. In 1993 in Herrera v. Collins, a 5-member majority of the Court said a claim of innocence based on new evidence alone is generally not enough to merit a new hearing in federal court. However, in 1995 in Schlup v. Delo, the Court ruled that a convicted murderer who had other constitutional claims in addition to an innocence claim could get a new hearing if he could show that his new evidence makes it probable that "no reasonable juror would have found him guilty beyond a reasonable doubt." Last year in House’s case, the U.S. Court of Appeals for the Sixth Circuit voted 8 to 7 that House's evidence did not meet this standard. Six of the dissenters believed his new evidence was strong enough to show his innocence. The issue before the Supreme Court is what standard should be used by federal courts to evaluate claims of innocence on the basis of newly discovered evidence. The case is House v. Bell, No. 04-8990.
Retired Orange County, California Superior Court Judge Donald A. McCartin, who was once known as "the hanging judge," recently called for an end to the death penalty. In a column he published in the Orange County Register, McCartin revealed that a number of recent death penalty cases and rulings by the U.S. Supreme Court have led him to now oppose capital punishment because it is expensive and can never be applied in a fair and balanced way. He wrote:
After an audit of Virginia's Division of Forensic Science resulted in criticism of the crime laboratory's procedures in testing DNA evidence, the state announced that it will now review the lab's findings in 160 cases, including approximately 24 death penalty cases that hung on DNA evidence. Robert J. Humphreys, a Virginia Court of Appeals judge, is leading the review effort to examine cases that date from 1994. This marks the first time Virginia has volunteered to revisit findings in the cases of executed felons on a large scale.
In an earlier lab audit that prompted this most recent review, the American Society of Laboratory Directors criticized the crime lab's role in the case of death row exoneree Earl Washington, Jr. The audit concluded that a chief lab scientist failed to follow proper procedure when testing a piece of evidence in Washington's case. The report stated that the analysis of this evidence was wrong and that internal review of the testing failed to properly identify the errors made by the scientist. Washington spent 17 years on Virginia's death row before DNA evidence confirmed his innocence and led to his pardon in 2000. Experts say that the review led by Humphrey's team of six national forensics experts will determine whether Washington's case was an isolated incident or an example of long-standing problems within the lab. The review team will not test or retest DNA evidence, but will determine whether scientists who handled the evidence followed proper procedures. Their work will take approximately eight weeks to complete.
David B. Albo, a member of the Virginia House Courts of Justice Committee and co-chairman of the Virginia State Crime Commission noted, "You need to have impeccable credentials to go into court. If they can't show that tests were done properly, that hurts prosecuting crimes."
An editorial in the Fort Wayne Journal Gazette stated that the death penalty is more expensive than life without parole and offers Indiana residents no measurable benefit for their tax dollars. The paper said that ending the death penalty and reallocating funds currently put toward capital punishment would improve programs such as victim's assistance, grassroots police programs, and social service agencies that work with at-risk youth. The Journal Gazette editorial noted: