Nov. 29 INDIANA: Landmark case still lingers today Recently, prosecutors and defense attorneys in Spencer County, Ind., struggled to come up with a solution to a dilemma that has enraged a community, compounded heartache for the family of a slain 15-year-old girl and cost taxpayers thousands of dollars in legal expenses. The dilemma? How in the modern media age can a notorious defendant accused of a heinous crime get a constitutionally fair trial? The answer, it turns out, may be rooted in events that occurred in the Evansville area 50 years ago this month, when a confessed serial killer, nicknamed "Mad Dog" by the media, went on trial amid a frenzy of publicity. For three weeks in November 1955, prosecutors and defense attorneys waded through a jury pool of more than 480 people to come up with 12 jurors to decide the fate of Evansville pipefitter Leslie Irvin. Irvin, a suspect in a string in deaths that terrorized the Tri-State, was on trial for the Dec. 23, 1954, killing of an Evansville gas station attendant, 29-year-old Whitney Wesley Kerr. Most of the jury, under questioning by lawyers, confessed their belief in Irvin's guilt before opening arguments even began. Their guilty verdict, which led to a death sentence for Irvin, would be overturned 6 years later by the U.S. Supreme Court. That ruling, cited by the Indiana Supreme Court last year in its decision to overturn the Spencer County murder conviction and death sentence of Roy Lee Ward, was precedent-setting. The nation's top justices - after scouring stories published in The Evansville Courier and other area newspapers - overturned Irvin's conviction. In doing so, they came up with a "fair trial" standard that remains the law of the land today. The justices found that the jurors' minds "were saturated" by media coverage, orchestrated in part by police and prosecutors to convince the community of Irvin's guilt. It was the first time a murder conviction was overturned by the U.S. Supreme Court because of pretrial publicity. But it wasn't the last. Ward, on Indiana's death row for the July 11, 2001, rape, torture and murder of 15-year-old Stacy Payne, won a new trial last year from the Indiana Supreme Court based on the argument that media coverage of Payne's death - in which she was beaten and nearly cut in half - poisoned the jury pool beyond its ability to render a fair verdict. Last month, the U.S. Supreme Court decided to let the Indiana Supreme Court decision stand. Since then, prosecutors and defense attorneys in the Ward case have been negotiating the location for a new trial. The court's ruling in the Ward case was greeted with anger and outrage by the community, a feeling reinforced when one of Ward's attorneys was quoted as saying there was no doubt of Ward's guilt. A similar wave of anger gripped the Tri-State during the height of Irvin's case. "The defense attorneys got death threats," recalls Jack VanStone, an Evansville attorney who was a young associate in the law firm that represented Irvin during his second murder trial. VanStone vividly recalls the fear and terror that gripped the Tri-State before Irvin's arrest. It was during the winter of 1954-1955, when six people were shot and killed during a series of robberies and burglaries. Among the victims were a 30-year-old pregnant woman killed in an Evansville liquor store, and a farm family in Geneva, Ky., whose 2-year-old daughter was found by police sitting next to the body of her dead mother. Irvin wasn't arrested until April 1955, when three young members of the Junior Sheriff Patrol, set up by then Vanderburgh County Sheriff Frank McDonald Sr., spotted a man who fit the description of the suspected killer and contacted police. Irvin was arrested April 8, 1955. A week later, according to Evansville Courier & Press archives, prosecutors announced Irvin confessed to the killings and a string of burglaries. There were demands for swift punishment, VanStone recalls. "There were people ready to drag him (Irvin) from the jail and hang him right on the spot." Irvin was far from a sympathetic character and the news stories reflected that. He had a string of arrests dating back to his childhood, when police said he attempted to burn down Bosse High School, "just for the thrill of it" according to news accounts. Irvin's court-appointed lawyers - Evansville attorneys Ted Lockyear Jr. and James Lopp Sr. - succeeded in getting Irvin's trial moved out of Evansville. But the trial only went as far as Gibson County - not far enough from the media saturation of the case, the U.S. Supreme Court later ruled. It was during the closing arguments that Gibson County prosecutor Loren McGregor branded Irvin a "Mad Dog Killer." The media quickly picked up the label and it stuck. Irvin's infamy grew even larger after his first conviction, when, in January 1956, he broke out of the Gibson County jail and disappeared into a snowstorm. The "Mad Dog" killer, facing the electric chair, became the object of a nationwide manhunt for 22 days, until he was tracked down by the FBI in a San Francisco pawnshop. Irvin later told Courier reporter Joe Aaron he broke out by fashioning jail-door keys from paperback novel covers, tin foil and glue. While Irvin sat on Indiana's death row in Michigan City, Lopp and Lockyear argued Irvin's trial was held in an atmosphere of bias and prejudice against their client. Lower courts rejected their claims, but the U.S. Supreme Court didn't. On June 5, 1961, the U.S. Supreme Court ordered a new trial for Irvin. Irvin was convicted again of 1st-degree murder, but he was spared the death sentence. He died in prison at the age of 59 on Nov. 9, 1983, of lung cancer. VanStone, now in his late 70s, still practices law in Evansville. Young attorneys fresh out of law school still learn the historical importance of the case. VanStone believes the case is about the sanctity of constitutional rights set down by the Founding Fathers more than 2 centuries ago. "He (Irvin) killed a lot of people and he deserved whatever punishment he was going to get, but he was still entitled to the right to a fair trial," said VanStone. "It's important to remember that his rights are our rights. Protecting the rights of the worst criminal guarantees that your rights and my rights are protected, too." (source: Evansville Courier & Press) MISSISSIPPI----impending execution----inmate is 77 years old Inmate, 77, faces death----Death-row prisoner convicted in 1985 contract scheduled for execution Dec. 14 The Mississippi Supreme Court has set a Dec. 14 execution date for a 77-year-old inmate on death row. In an order filed Monday, the high court denied a motion by John B. Nixon's attorney, David W. Clark, to vacate his death sentence and also refused to hear oral arguments on the matter. Clark had asked the court not to reset an execution date because the state admitted Nixon's guilty plea to rape in 1958 in Texas shouldn't have been used as a factor to support seeking the death penalty. But Justice Chuck Easley, writing for the court, said "the issues Nixon now raises were raised on direct appeal or could have been raised on direct appeal or in Nixon's prior motions for post-conviction relief." The state Supreme Court decision comes after the U.S. Supreme Court refused to hear Nixon's appeal earlier this month. "We anticipate further appeals by the defendant, but it appears this hit man has run his course," state Attorney General Jim Hood said in a statement. "His execution is eminent." Brian F. Toohey of Cleveland, Ohio, one of Nixon's attorneys, said "we intend to file a motion for reconsideration with the U.S. Supreme Court." Toohey said Mississippi also has a clemency process that can be sought on behalf of Nixon. "We don't know what we will do until we see the order," Toohey said of the state Supreme Court order. Nixon was convicted of capital murder in the Jan. 2, 1985, murder-for-hire of Virginia Tucker in her Brandon home. Tucker's ex-husband, Elester Joseph Ponthieux of Raymond, is serving a life sentence for hiring Nixon. Tucker's husband, Thomas, was wounded and identified Nixon as the attacker. 2 of Nixon's sons and a friend also were convicted in the killing. Nixon agreed to kill the Tuckers for money and rejected their attempts to pay him to leave them alone. Neither Tucker's nor Nixon's family could be reached for comment. Nixon is the oldest inmate on death row. The last execution in Mississippi was Dec. 11, 2002. (source: Clarion Ledger) MARYLAND----impending execution Keeler sees killer, appeals execution----Cardinal visits prison, seeks Ehrlich's mercy In a rare and dramatic gesture, Cardinal William H. Keeler visited convicted killer Wesley Eugene Baker on Maryland's death row yesterday as Keeler appealed to the governor to stop the execution scheduled for next week. Gov. Robert L. Ehrlich Jr., who signed Baker's death warrant this month, "fully respects Cardinal Keeler and his beliefs," spokesman Henry Fawell said, and is "committed to giving this case a thorough and objective review based on its own individual merits." The cardinal's visit to death row - his 1st - came less than 2 weeks after the U.S. Conference of Catholic Bishops approved a statement calling for an end to the death penalty. It came on the day that Baker's lawyers asked Ehrlich to commute their client's death sentence and petitioned the U.S. Supreme Court to review lower courts' rejections of requests to have his sentence overturned. Keeler described the brief meeting with Baker as "very prayerful and spiritual," saying he offered a blessing over the death row inmate. For church leaders, he later added, "This is an opportunity when we can and should speak out on behalf of human life." Baker, 47, is scheduled to be put to death by injection the week of Dec. 5 for the killing of Jane Tyson, a 49-year-old teacher's aide who was shot in the head and robbed of her purse in front of 2 of her grandchildren outside Westview Mall in Baltimore County in 1991. Keeler said he had spoken by phone over the past few days with Tyson's relatives. "They understood that we have to do what our conscience leads us to do," the cardinal said, declining to elaborate on their conversations. Karen Sulewski, whose children were with her mother when she was killed, said last night that she knew of the cardinal's visit and did not wish to comment. An archdiocese spokesman said Keeler's visit to death row was, to his knowledge, the 1st in modern times by a Maryland bishop. As chairman of the U.S. Conference of Catholic Bishops' Committee for Pro-Life Activities, Keeler collaborated on a soon-to-be-published document that seeks to "seize a new moment" to spread Roman Catholic teachings on the issue. In a letter sent yesterday, Keeler, the archbishop of Baltimore, Cardinal Theodore E. McCarrick, the archbishop of Washington, and Bishop Michael A. Saltarelli of Wilmington, Del., asked the governor to commute Baker's sentence to life without parole. "We write as believers, who know that God's justice is seasoned by His mercy," the church leaders wrote. "Mercy is what we ask of you in the case of Mr. Baker." Church teaching "acknowledges the right of legitimate government to resort to the death penalty, but it challenges the appropriateness of doing so in a society now capable of defending the public order and ensuring the public's safety," the bishops wrote. Quoting both the Bible and the remarks of former Gov. Theodore R. McKeldin upon the last of his 15 commutations, the bishops reminded Ehrlich that "no decision of your gubernatorial service can be more momentous than the decision to extend, or to withhold the hand of mercy." The bishops' letter echoes many of the ideas discussed at this month's conference of bishops, where an 18-page statement, "A Culture of Life and the Penalty of Death," was approved. The statement characterizes the administration of capital punishment as error-prone, biased and irreversible, and says that state-sanctioned killing diminishes all Americans. It also warns that the death penalty offers a false hope of healing to the survivors of crime and calls on Catholics to support those who have lost loved ones. In June 2004, the 3 bishops asked Ehrlich to spare the life of death row inmate Steven H. Oken, to no avail. Convicted of the sexual assaults and murders of two women in Maryland and one in Maine in 1987, Oken was put to death by injection later that month. It was the 84th execution in Maryland history and the state's fourth since resuming executions in 1994 after the Supreme Court reinstated the death penalty in 1976. Upon his arrival at 5:05 p.m. yesterday at the high-security Baltimore prison known as Supermax, where death row inmates are housed, Keeler was greeted warmly by several members of Maryland's Citizens Against State Executions. He left the prison 25 minutes later and walked down Madison Street to the plaza outside the Baltimore Central Booking and Intake Center, where death penalty opponents have regularly gathered in protest for at least eight years. Of his meeting with Baker, Keeler said, "The opportunity presented itself, so I was very happy to take advantage of it." He emphasized that Catholic leaders have opposed the death penalty for a quarter of a century. He twice referred to Pope John Paul II's remarks on the subject in 1999 during a visit to St. Louis, saying the pope was clear that the use of capital punishment is "really sending the wrong message about the sacredness of human life." During that visit, the pope asked Missouri Gov. Mel Carnahan to spare the life of convicted killer Darrell Mease, who was days away from execution. Carnahan, a Baptist Democrat, commuted the sentence to life in prison, citing "the extraordinary circumstances of the pope's request." Among American Catholics, support for capital punishment fell from 68 % in June 2001 to 48 % in March 2005, according to independent opinion poll results circulated by the bishops at their fall meeting this month. Opposition to the death penalty grew from 27 % to 48 % during the same period. "The significant trickle-down from the papacy to the bishops to the priesthood has changed the consensus," said E. Christian Brugger, author of Capital Punishment and Roman Catholic Moral Tradition. "Now you have the conscientious Catholics, they are taking this issue seriously, and they're wrestling with it, they're asking questions, they're reading about it, they're saying, 'Should I re-examine my own position on this?'" Among the U.S. population, opposition to the death penalty has been building amid revelations of racial disparities in its application and the growing number of convictions proved wrongful by DNA testing, according to several studies in recent years. Sentenced to death in 1992, Baker was initially scheduled to die the week of May 13, 2002. But on May 9 of that year, then-Gov. Parris N. Glendening imposed a moratorium on executions while a study of Maryland's use of the death penalty was completed. On Nov. 3, Ehrlich signed a 2nd death warrant for Baker, scheduling the killer to be put to death by injection the week of Dec. 5. Because Glendening had stayed Baker's execution in 2002, the request for a new death warrant had to go to the governor's office rather than to a Circuit Court judge, as is typically the case. Gary W. Christopher, a federal public defender and one of the attorneys representing Baker, said that while the inmate is not a particularly religious man, he is a spiritual person who believes in God. "He thinks a lot," Christopher said, "although he doesn't really latch on to any one religion." Baker's lawyers delivered to Ehrlich's legal counsel yesterday a 42-page petition for commutation of the death sentence to life imprisonment without possibility of parole. The attorneys also filed a civil lawsuit in Baltimore City Circuit Court challenging the state's protocol for lethal injection. And the defense team sent to the U.S. Supreme Court a request that the justices review Maryland courts' denials of Baker's legal challenges based on a University of Maryland death penalty study that found racial and geographic disparities in the state's administration of capital punishment. The case The crime Wesley Eugene Baker was convicted of killing Jane Tyson, a 49-year-old teacher's aide who was shot in the head and robbed outside Westview Mall in 1991. The sentence He was sentenced to death in 1992. Gov. Robert L. Ehrlich Jr. signed a death warrant Nov. 3. Barring a successful appeal or action by Ehrlich, Baker will be executed next week. (source: Baltimore Sun) VIRGINIA----impending execution Before taking a life, the state must be sure----Gov. Warner should not make Robin Lovitt the 1,000th inmate to be executed since reinstatement of the death penalty. The eyewitness to a pool hall robbery is "80 percent" sure that Robin Lovitt murdered a man with scissors. For that, Virginia believes he ought to die on Wednesday. Maybe Lovitt is a depraved murderer. But what if Lovitt is simply a despicable human being who merely stepped over a bloody corpse to swipe a cash box? Does he still deserve a lethal injection? The second scenario is what Lovitt claimed happened the night Clayton Dicks was slain. Virginia shouldn't take his word for it, but any chance for Lovitt to prove his innocence, by subjecting the scissors and clothing to DNA testing, disappeared when a court clerk, contrary to state law, accidentally trashed the evidence. The state's bungling wipes away the last chance for Virginia to be sure it is executing the right person. Without it, doubt creeps in, leaving simply a witness who is merely "80 %" certain. Enough reasonable doubt exists to prompt Gov. Mark Warner to grant Lovitt clemency and commute his sentence to life imprisonment. Warner should tarry no longer in making that call. The decision is simple when viewed within the framework of a fair judicial system that exercises great care in ensuring that the right person is held accountable. Unfortunately, political implications cloud such decisions. Warner, who is contemplating a run for the presidency in 2008, doesn't want shades of Michael Dukakis' Willie Horton haunting his campaign. Yet, he also must recognize that Jerry Kilgore's recently failed gubernatorial campaign fell apart when he attempted to pump voters with a blood lust for a brand of vengeance that leaves no room for reviewing possible errors. As governor, Sen. George Allen granted clemency with no harm to his political career. Above all, Virginians, on either side of the death penalty debate, desire to retain faith in the judicial system; they expect a degree of certainty to rise above "80 %." Lovitt's is not the only case to give pause. Doubt still lingers over the 1992 execution of Roger Keith Coleman thought to have raped and murdered his sister-in-law. Again, Warner has the opportunity to order DNA testing that will confirm the state killed a murderer, or made a horrendous mistake that took an innocent man's life and left a killer free. Justice demands seeking a definitive answer when available. For Lovitt, that can never be obtained. Only one just option remains: clemency. (source: Editorial, Roanoke Times) ******************** Lovitt Scheduled to be Executed on Wednesday -- Governor Warner faces difficult decision, as even some death penalty proponents urge him to grant clemency. Death penalty opponents, lawyers and a former Republican gubernatorial candidate are among those imploring Gov. Mark Warner to grant clemency to Arlington resident Robin Lovitt, scheduled to be executed Wednesday, Nov. 30, despite the destruction of DNA evidence in the case by a court clerk. If executed, Lovitt, 41, would be the 1,000th person put to death since the reinstatement of the death penalty in 1977, following a 10-year moratorium. Lovitt was convicted of the 1998 fatal stabbing of Clayton Dicks during a robbery of Champion Billiards, a pool hall in Shirlington. Dicks, a nighttime manager, was stabbed six times with a pair of scissors. The case is drawing national attention because of the macabre milestone, and has placed Warner in a sensitive political position. Some death penalty proponents have appealed for Lovitts sentence to be commuted, arguing that the procedures integrity will be damaged if an innocent man is put to death. According to the Richmond-Times Dispatch, the only witness in the case, Jose Alvarado, told a private investigator earlier this month that Lovitt should not be executed because he was not positive Lovitt murdered Dicks. At a preliminary hearing Alvarado did not identify Lovitt as the assailant but at the trial said he was "80 % sure" he saw Lovitt stab Dicks. Eleven prisoners have been executed during Warner's tenure and he has yet to grant clemency to an individual on death row. Lovitt's execution would be the 95th in Virginia since 1977, the second highest number of any state in the nation, behind Texas. Kevin Hall, spokesman for Warner, said the governor has all the relevant information on the case but has not yet decided whether to grant clemency. A reprieve from the governor is the only way Lovitt can be spared. "This is the most solemn responsibility of any governor and Governor Warner will give it the respectful and prayerful deliberation it deserves," Hall said. 3 hours before Lovitt was to be put to death on July 11, the Supreme Court voted to stay the execution. In October the justices refused to hear his appeal, surprising many who expected it would reverse the decision of a lower court that had allowed the execution to proceed. Some proponents of the death penalty, including Mark L. Earley, who was Virginias Republican attorney general from 1998-2001 and lost to Warner in the subsequent gubernatorial race, have called on the governor to grant Lovitt clemency because of the destruction of DNA evidence during the appeals process. An Arlington County court clerk discarded the suspected murder weapon and Lovitt's blood-stained jacket, in violation of state law. Earley sent a letter to Warner before Lovitts initial execution date, urging him to commute Lovitt's sentence. "If this case were to go forward, it would really undermine the death penalty in Virginia," Earley, who is now president of the Virginia-based Prison Fellowship Ministries, said in a phone interview last week. "This is not a question of innocence or guilt, but whether the death penalty should be imposed without procedural safeguards." In an interview following the Supreme Courts decision, Emily Lucier, spokesman for the states attorney general Judith W. Jagdmann, said the DNA evidence was not a critical element of the case and Lovitt was found guilty based on other "compelling evidence," including eyewitness testimony. Former independent counsel Kenneth W. Starr, who investigated President Bill Clinton during the Whitewater and Monica Lewinsky scandals, took up Lovitt's case on a pro bono basis earlier this year, and is "hoping and praying" the governor will reduce Lovitt's sentence to life in prison. "We are hopeful that the governor will be moved by what we see as a powerful case for clemency, but the matter is entirely in his hands." Lovitt was transferred to Greensville Correctional Center in Jarratt over the holiday weekend and is scheduled to die by lethal injection at 9 p.m. on Nov. 30. Lovitt is "in very good spirits, hopeful and at peace with himself," said Jane Lovitt, Robins wife since 2000. "He is just reading books, writing poetry and living his everyday life." The state argued that Lovitt entered the pool hall, where he used to work as cook, and attempted to pry open the cash register with a pair of scissors. When Dicks confronted him, Lovitt stabbed Dicks 6 times with the scissors, prosecutors contended. The pair of scissors was found in the woods behind the pool hall. Lovitt has maintained his innocence and said he went to the pool hall that night to ask Dicks for money. Lovitt said that when he came out of the pool hall bathroom he saw Dicks and another man fighting. Lovitt, who admitted to smoking crack cocaine earlier in the night, said he returned to the bathroom and eventually left the establishment with the cash register after he found Dicks dead. Besides Alvarado's testimony, Casel Lucas, a fellow inmate of Lovitts, claimed Lovitt confessed to the murder, though doubts arose during the trial about the veracity of Lucas' assertion. Initial DNA tests could not prove whether Lovitt's sweat was on the scissors and tests on the blood on Lovitt's jacket were inconclusive. Just weeks after the Virginia General Assembly passed legislation requiring all biological evidence in death penalty cases be preserved, an Arlington deputy court clerk threw out the jacket, scissors and other evidence to make space in a storage room. During a February hearing before the 4th U.S. Circuit Court in Richmond, Starr argued that defense attorneys in Lovitt's initial trial failed to present evidence, including details of childhood abuse, that could have prevented a death sentence. Given the nature of Warners political aspirations, his decision is being watched carefully by both Republicans and Democrats. Earley said he did not think that presidential politics will play any role in Warner's decision. "He will review this case objectively on the surrounding facts," Earley said. Though Warner's political ambition adds "an intriguing dimension" to the clemency bid, Starr said the governor will "examine the specific circumstances from Robin's case - and focus on the specific facts." Jack Payden-Travers, executive director of Virginians for Alternatives to the Death Penalty (VADP), said it is "hard to be optimistic" that Warner will commute the sentence but believed the destruction of DNA evidence gives the governor the "political coverage to intervene." Payden-Travers said he has requested a meeting with the governor's advisers to deliver more than 500 letters calling for Lovitt not to be executed. VADP sent out thousands of flyers across Virginia this weekend and is preparing a mass rally and vigil outside Greensville Correctional Center. "We hope Warner won't wait until the last minute," Payden-Travers said. "It is an injustice that Lovitt is being prepared for execution by a state that has destroyed the evidence against him." (source: The Arlington Connection) *************** Death Penalty Opponents Plan Protest Death penalty opponents are planning to stage one of Virginia's largest execution night protests Wednesday if the landmark execution of Robin Lovitt goes forward as scheduled. Unless Gov. Mark R. Warner intervenes, Lovitt probably will become the 1,000th person executed in the United States since the U.S. Supreme Court reinstated capital punishment in 1976. Candlelight vigils and protests are planned across the country on Wednesday and Thursday if Lovitt's execution goes forward. Churches in several states plan to toll their bells to mark the event. In Connecticut, between 300 and 500 churches will toll their bells at 6 p.m. Wednesday, three hours before Lovitt is scheduled to die by injection, said Robert Nave, executive director of the Connecticut Network to Abolish the Death Penalty. "We have become complacent in the fact that on at least a weekly basis now, we are exterminating a citizen," Nave said. "We figured the nation should take notice." Amnesty International USA has chartered two buses to bring protesters from the District of Columbia and other parts of Virginia to Greensville Correctional Center in Jarratt, about 60 miles south of Richmond. About 200 Amnesty members are hoping to attend, making this one of the group's largest execution protests in recent years, said Sue Gunawardena-Vaughn, director of Amnesty's program to abolish the death penalty. Lovitt, 42, was convicted in 1999 of fatally stabbing Clayton Dicks with a pair of scissors during a robbery of a pool hall in Arlington, a Washington, D.C., suburb. Prosecutors said Dicks caught Lovitt prying open a cash register with the scissors, which police found in the woods between the pool hall and the home of Lovitt's cousin. Lovitt admitted grabbing the cash box, but insisted he saw someone else kill Dicks. Initial DNA tests of the scissors were inconclusive. Lovitt's lawyers and death penalty opponents say his life should be spared because a court clerk prematurely and illegally destroyed the bloody scissors and other evidence, precluding post-conviction DNA testing that they claim could exonerate him. Jack Payden-Travers, executive director of Virginians for Alternatives to the Death Penalty, said he also is expecting a larger-than-normal group of protesters Wednesday. The group usually draws between 6 and 100 protesters outside the death chamber during executions, he said. The governor on Monday was considering Lovitt's clemency petition, said Warner's spokesman, Kevin Hall. "Governor Warner continues to give this case the serious and prayerful consideration that it deserves," Hall said. (source: Associated Press) **************** Death and DNA----2 cases illustrate the societal dilemma that confronts Warner Gov. Mark Warner faces two decisions involving murder, the death penalty and DNA. One is on a very short timetable, the other has no set deadline. In their differences, they illustrate the fact that while DNA evidence has the power to unlock the truth in some cases, it cannot play that role in every case. By today or, at the very latest, Wednesday, Warner must make a decision about the clemency petition of Robin Lovitt, who is scheduled to die Wednesday for murder during the robbery of a pool hall in Arlington. The DNA connection in this case takes the form of blood smears on the scissors that were the murder weapon. No testing of that DNA is possible, because a court clerk destroyed most of the evidence before the appeals were exhausted. But even if the scissors were available and new DNA testing revealed whether Lovitt's blood was on them (the original tests were inconclusive), the results wouldn't tell how it got there. Warner must decide whether he sees evidence of sufficient error in the workings of the judicial system to warrant putting aside the conclusions it reached. In the absence of such evidence, he should uphold the penalty. The question that captures attention in this case - whether the destruction of evidence by the state necessitates setting aside the sentence it imposed - is just a distraction in the absence of any indication that the destroyed evidence could exonerate Lovitt. The 2nd case facing Warner is very different. In it there is the possibility that DNA evidence could answer compelling questions about innocence. And the decision he should make - to try to answer those questions - is clear. But there is no deadline. The defendant, Roger Keith Coleman, has been executed - in 1992, for the rape and murder of his sister-in-law. But there have been doubts all along about Coleman's guilt. They were sufficiently persistent to lead three leading newspapers and a nonprofit innocence project to sue, unsuccessfully, to have the evidence tested using DNA technology not available when Coleman was alive Warner has the chance to try to answer the lingering questions by ordering a new test - if the evidence isn't too old or too scant. Warner has not taken a stand on the testing, but it's encouraging that his staff has been working for months to sort through the complex issues involved, negotiating with the California forensic scientist who has had custody of the evidence since testing it before Coleman was executed. If a final, end-of-term push can't resolve the issues, Warner should order the testing. If he can't, he should pave the way for that to happen in the next administration by publicly stating his support for testing. The election of Tim Kaine gives a little breathing room, since Kaine may be willing to grapple with the issue while his opponent, Jerry Kilgore, refused to consider it. So long as cases like Coleman's - but not, it seems, Lovitt's - leave questions about innocence, they undermine the willingness of courts to impose death sentences and the willingness of the public to support the penalty carried out in its name. Those questions must be answered, not for Coleman, but for society. (source: Daily Press)
