Execution delayed in DNA case

The Supreme Court on Monday blocked the scheduled execution Monday night of a Virginia death row inmate, in a case that seeks to raise basic issues about a state’s obligation to preserve DNA evidence for possible use in challenging a criminal conviction in post-conviction review.

In an order issued by an apparently unanimous Court, the Justices stayed the execution of Robin McKennell Lovitt. The stay will remain in effect if the Court agrees later to hear Lovitt’s petition for review (Lovitt v. True, docket 05-5044). The stay will expire if review is denied, however. (The stay application was docketed at 05A7.)

Lovitt’s appeal raises three issues. The one that has attracted wide interest in his case involves a court’s clerk destruction of DNA evidence that Lovitt contends could have aided in his challenge to the conviction and death sentence. The evidence was destroyed after Lovitt’s conviction had been upheld by the Virginia Supreme Court.

Here is the issue Lovitt poses on that facet of the case: “Whether, in light of the fact that DNA evidence has exonerated more than a dozen individuals on death row, the Court of Appeals [Fourth Circuit] erred in holding that Arizona v. Youngblood [1988] permits a Commonwealth employee to destroy DNA evidence deliberately, unlawfully, and in reckless disregard for the petitioner’s rights before post-conviction proceedings have commenced.”

The Fourth Circuit, upholding a Virginia Supreme Court decision that the destruction of the evidence was not done in bad faith, said that the Youngblood decision only involved destruction before trial, and not after a conviction had been upheld.

Lovitt’s petition also presents questions about an ineffective investigation of his background by his defense lawyer, and about the failure of the prosecution to turn over a medical examiner’s opinion that was favorable to the defense.

Lovitt’s appeal has drawn the support of the National Association of Criminal Defense Lawyers and the Innocence Project. His petition was filed by attorneys at Kirkland and Ellis, led by Kenneth W. Starr.