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American Civil Liberties Union of Virginia, News Release
June 22, 2005

Virginia Rights Groups Ask Governor to Order Re-Testing of DNA Evidence in Death Penalty Cases

Crime lab problems cast doubt on case of inmate
scheduled for execution on July 11

A wide ranging coalition of advocacy groups have joined together to ask Governor Mark Warner to re-test all DNA evidence used in the conviction of Virginia death row inmates.

Warner ordered a review of DNA evidence used in at least 160 criminal cases in Virginia after an independent audit by the American Society of Crime Laboratory Directors criticized the state’s Division of Forensic Science for its handling of the Earl Washington case. Washington spent 17 years on death row before new DNA testing pointed to his innocence.

“Governor Warner is to be commended for ordering the case reviews,” said ACLU of Virginia executive director Kent Willis. “But that is not enough where the death penalty is involved. In those cases, the state needs to re-test all DNA to make absolutely certain that the evidence was accurately interpreted.”

“The execution of an innocent person is not an error the state can reverse,” added Willis.

The case reviews ordered by the Governor consist of careful analysis of the way in which evidence was handled in criminal cases in order to determine if proper procedures were followed, but do not go so far as to require the re-testing of DNA evidence. The letter sent to Warner emphasizes the importance of re-testing DNA in cases in which the death penalty is involved.

Of particular concern to the groups that have written the Governor is the case of Robin Lovitt, who is scheduled for execution on July 11. In that case, the state determined that DNA evidence was inconclusive and then proceeded to improperly destroy the evidence. The letter calls for the Governor to halt the execution of Lovitt.

The letter, which was delivered to the Governor earlier today, was signed by representatives of the Virginia Interfaith Center for Public Policy, Virginians for Alternatives to the Death Penalty, the Virginia NAACP, the Rutherford Institute, the Virginia Catholic Conference, the Virginia Council of Churches, the ACLU of Virginia and eight others.

A copy of the letter follows.

Main Contact:
Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022

 Additional Contacts:
Jack Payden-Travers, VADP, 434-960-4673 or Doug Smith, VICPP, 804-370-6689

6 North 6 th Street, Suite 400
Richmond , VA 23219

June 22, 2005

The Honorable Mark R. Warner
Executive Office Building , 3rd Floor
1111 East Broad Street
Richmond, Virginia 23219

Dear Governor Warner:

We write to you as diverse organizations and individuals who are concerned about the administration of the death penalty in our Commonwealth. Some of us support capital punishment and others oppose it. All of us, however, are alarmed at new evidence that the accuracy of DNA testing in Virginia’s forensic crime lab has been seriously called into question.

We applaud your thoughtful call for an independent audit of the state lab and the newly ordered review of cases involving low-level DNA evidence. However, these are just the first steps in the effort to address the problems at the lab. Now it is necessary to go further and actually retest the DNA evidence in all the death penalty cases that could have very well suffered the same inaccuracies as Earl Washington Jr.’s case. In particular, the state should not proceed with the execution of any person until the retesting and the audit is complete.

Of pressing concern is the upcoming execution of Robin McKennel Lovitt – scheduled for July 11, 2005 – that has many similarities to Washington’s case. The state tested the DNA evidence, but determined the results were “inconclusive” in regards to Mr. Lovitt’s involvement. It appears now that the results may have been inconclusive because of the low-level of DNA available to be tested. This is hauntingly familiar to the findings in Washington’s case. It could very well be that the analyst failed to properly exclude Mr. Lovitt and/or may have failed to identify the true perpetrator.

Of course, the next logical action to take would be the issuance of an order to retest the DNA evidence in the Lovitt case by outside analysts. This, however, is impossible because of the improper action of Virginia court officials. Chief Deputy Clerk of the Circuit Court of Arlington County, Robert McCarthy, prepared an order to destroy the evidence in Mr. Lovitt’s case in blatant violation of Virginia law. Judge Paul F. Sheridan signed the improper order, and the relevant evidence was destroyed, in violation of section 19.2-270.4:1 of the criminal code. The only physical evidence linking Mr. Lovitt to the murder was the inconclusive DNA that the state argued proved that Mr. Lovitt could not be excluded. Mr. Lovitt was present at the crime scene and admitted to stealing a cash register drawer, but has always said he did not commit the murder.

We cannot say that Mr. Lovitt is innocent; but neither will we ever be able to say with confidence that he is not. This is because post-conviction testing, which you and the General Assembly have worked to provide and improve as the primary safeguard to preventing error, has been forever denied to Mr. Lovitt. Given the history of improperly conducted testing of low-level DNA, we cannot send a man to his death with so many unanswered questions pending. The Commonwealth’s only alternative is to stay his execution and commute his death sentence to life in prison.

Without your leadership on this issue, the current problems at the forensic lab would not have come to light and no reviews would have been ordered. Today, we are asking you to go a step further by considering our request to stay the execution of Mr. Lovitt and allow the retesting of the DNA evidence in all 23 death penalty cases before any executions take place. Given the relatively small number of people on death row in Virginia, this will not be an onerous burden.

We believe that the Governor’s intervention in this case is appropriate under these circumstances, is consistent with the values of all Virginians to confidently avoid risks of wrongful execution, and will be fully supported as a responsible and prudent act.

Thank you for your attention to this matter.

Sincerely,

Jean Auldridge
Director
Citizens United for the Rehabilitation of Errants (VA-CURE)

Rev. Jonathan Barton
General Minister
Virginia Council of Churches

Dr. Stephen Camp
United Church of Christ, Southern Conference

Jeff Caruso
Executive Director
Virginia Catholic Conference

Robert Deans
Executive Director
Murder Victims’ Families for Reconciliation

Barbara Ginsburg
Facilitator
Friends Committee on Commonwealth Legislation

Rt. Rev. David C. Jones
Bishop Suffragan of the Diocese of Virginia
Episcopal Church

Rev. Charlene Kammerer
Resident Bishop
Virginia Conference, United Methodist Church

King Salim Khalfani
Executive Director
National Association for the Advancement of Colored People, Virginia Branch

Jack Payden-Travers
Executive Director
Virginians for Alternatives to the Death Penalty

Debra Riggs
Executive Director
National Association of Social Workers, Virginia Chapter

Rev. C. Douglas Smith
Executive Director
Virginia Interfaith Center for Public Policy

Earl Washington, Jr.
Death Row Exoneree

John Whitehead
President
The Rutherford Institute

Kent Willis
Executive Director
American Civil Liberties Union of Virginia

Esther Windmueller
President
Virginia Association of Criminal Defense Lawyers