[Deathpenalty]death penalty news----TEXAS, ALA., OHIO, FLA, VA.

[Rick Halperin]

Nov. 3



TEXAS----execution

Killer of 9-year-old in West Texas executed


In Huntsville, convicted child killer Melvin Wayne White, apologetic and
prayerful, was executed this evening for the 1997 abduction, sexual
assault and beating death of a 9-year-old girl who lived in his West Texas
neighborhood.

In final comments on the death chamber gurney, White told witnesses to
tell "Beth and them I am sorry, truly sorry for the pain that I caused
your family." He was referring to the mother of his victim. "I truly mean
that, too. She was a friend of mine and I betrayed her trust."

White told the witnesses that he loved them and asked that they tell his
mother that he loved her. Then, he began reciting the 23rd Psalm, which
begins "The Lord is my shepherd" and recited the Lord's Prayer.

"All right, warden," he said at the conclusion. "Let's give them what they
want."

As the drugs began taking effect, he remarked, "I can taste it." He then
sputtered and gasped. 9 minutes later at 6:21 p.m., he was pronounced
dead.

White confessed to the slaying of Jennifer Gravell, blaming a lifelong
drinking problem for his attack on the young girl whose family lived two
houses away from him in Ozona, about 200 miles west of San Antonio.
Prosecutors insisted White was a pedophile who used the alcohol
explanation as a convenient excuse for his actions.

In a death row interview last week, White, 55, acknowledged the slaying,
expressed regrets, said he didn't want to die but figured the state was
doing him a favor by executing him.

"I look at it as relief, just to get out of here," he said. "I've got to
live with this for the rest of my life. It's not an easy deal to do."

The U.S. Supreme Court, which last month refused to review White's case,
rejected an 11th-hour appeal about an hour before his scheduled execution
time. White's lawyers had challenged procedures barring them from filing a
suit related to the constitutionality of the lethal combination of drugs
used in the injection by prison officials.

Earlier this week, the Texas Board of Pardons and Paroles declined a pair
of requests to delay White's punishment for 90 days or commute his
sentence to life.

"This was a guy that was supposed to be their next-door neighbor," Dottie
Elrod, the slain girl's grandmother, told the San Angelo Standard-Times
this week. "I've fought for eight years to get this done."

Ori White, the district attorney who prosecuted the case, said the murder
was a heinous crime that left Ozona, population about 3,500 and the only
town in Crockett County, "a town that will never be the same."

Melvin White attended a neighborhood barbecue the evening of Aug. 7, 1997,
and went home after downing several drinks. Jennifer also attended with
her family, then was noticed missing later in the evening.

Evidence and testimony showed White took her in his pickup to a roadside
rest area outside Ozona where she was bound with black electrical tape,
had a sock stuffed into her mouth and was sexually assaulted with a
screwdriver. Then she was hit repeatedly with a tire iron before her body
was dumped behind a water tank.

Authorities found in a trash can in White's house the girl's underpants,
sandals and a ball of tape with her hair on it. White confessed to a Texas
Ranger and told where the body could be found. A witness had told
authorities, after the girl was reported missing, that he saw White in his
truck with what he believed was a blond person. The victim had blond hair.

"I don't remember much about it because I was drinking," White said last
week, saying he'd been a drinker since he was 13 or 14.

At his trial, prosecutors showed White had assaulted an underage daughter,
forced her to perform oral sex, raped her and offered to pay her $50 a
week to perform sexual favors. He also had been accused of fondling a
female cousin and teenage girl who had been visiting his home.

In May 2003, Charlie Gravell, Jennifer's father, shot himself to death, a
suicide Elrod blamed on the loss of his daughter.

"He just couldn't handle it," Elrod said.

Next on the execution schedule is inmate Charles Thacker, facing injection
Nov. 9 for strangling a Houston woman while attempting to rape her. 2 more
Texas inmates are set to die the following week, another in December and 5
have execution dates for early next year.

White becomes the 16th condemned inmate to be put to death this year in
the USA and the 352nd overall since the state resumed capital punishment
on December 7, 1982. 3 more executions are set to be carried out in Texas
later this month.

White becomes the 113th condemned inmate to be put to death in Texas since
Rick Perry became Governor in 2001.

White becomes the 46th condemned inmate to be put to death this year in
the USA and the 990th overall since America resumed executions on January
17, 1977. There are 11 more executions currently scheduled in America this
month, and if all are carried out, the USA will execute its 1000th
condemned inmate on November 29, in Ohio. The death penalty was
re-legalized in the USA on July 2, 1976.

(sources: Associated Press & Rick Halperin)

************************

Killer walks out of Harris County Jail-- Sheriff's office asks for help
finding 'Chuckster Killer' fleeing death penalty


A 35-year-old man facing the death penalty walked out of the Harris County
Jail today, and lawmen are appealing for the public's help in finding the
so-called Chuckster Killer.

Charles Victor Thompson managed to get into civilian clothing and
"apparently he fooled somebody into thinking he had some reason for being
there, and they let him out," said Sheriff's Office Lt. John R. Martin.
Thompson escaped from a secure area at the jail at 1200 Baker at about
3:30 p.m. today, said Martin, who doesn't know how police got wind of the
escape. Martin said officials are still looking into the details of the
escape.

According to Martin, Thompson was convicted of capital murder in the April
1998 shooting deaths of Dennise Hayslip and Darren Cain, and had been
sentenced to death.

Martin said Thompson is considered extremely dangerous and should not be
approached if spotted. He is described as white, 5' 10", and weighing
approximately 180 pounds. Thompson was last seen wearing a dark blue
shirt, khaki pants and white tennis shoes.

Officials ask anyone with information regarding Thompson's location to
call the Harris County Sheriff's Office at (713) 221-6000, or the Criminal
Warrants Division at (713) 755-6055.

Harris County responsible

Michelle Lyons, a spokeswoman for the Texas Department of Criminal
Justice, which manages the state's prisons system, said Harris County
officials were responsible for securing Thompson. She said the state
wasn't yet anticipating his arrival.

Lyons said sometime within the next 45 days Thompson likely would have
been transferred to the Byrd Unit in Huntsville for processing, before
going to the Polunsky Unit in Livingston, where male death-row inmates are
housed.

State officials sometimes transport inmates in buses from the counties
where they were convicted, but usually that's left to the counties, she
said.

"With a death-row case, I would presume they wouldn't mix him with other
inmates, and he would have been brought down in a county vehicle," she
said.

Though Lyons said securing Thompson wasn't yet the state's responsibility,
the department would send fugitive hunters and tracking dogs, if asked by
Harris County. So far, that call hasn't come, she said.

"There's not a lot we can do because he was not in our custody," she said.
"Certainly, we're willing to lend any help that we can in apprehending
this offender."

Sentenced to death Friday

Thompson, who was from Tomball, was sentenced just Friday in the killings
of his ex-girlfriend, Hayslip, 39, of Tomball, and her new love interest,
Cain, 30, of Spring, after a jury concluded his troubled background did
not warrant a life sentence. Jurors, who called the case "horrible" and
"heartbreaking," also agreed that Thompson would be a continuing danger to
society if allowed to live.

The murders took place April 30, 1998, after Thompson kicked in the door
of Hayslip's north Harris County apartment. Cain was shot 4 times and died
immediately. Hayslip was shot in the face and died several days later at a
hospital.

Hayslip had ended her relationship with Thompson shortly before the
attack. Thompson described their romance as "a fatal attraction,"
prosecutors said.

In July 1998, while in jail, he was accused of trying to hire a hitman to
kill a friend's mother, who had heard him confess to the shootings,
prosecutors said. He was charged with solicitation of capital murder, but
that charge was dismissed after his capital murder conviction.

Thompson -- who called himself "Chuckster Killer" in letters from jail --
later was accused of hatching a second murder-for-hire plot in the Harris
County Jail targeting the woman who heard him confess, Hayslip's brother,
an undercover investigator and an inmate who tipped authorities to his
first hired-killing scheme, prosecutors said.

During his sentencing, defense attorneys argued that the attack was a
crime of passion and pushed for a life sentence. They tried to show that
Thompson's youth was marred by drugs, alcohol, academic troubles and a
strained relationship with his father, although he had an affluent
upbringing and his parents remain together after 39 years of marriage.

Thompson received a new punishment hearing because the Texas Court of
Criminal Appeals ruled that his constitutional right to counsel was
violated when prosecutors in his 1999 trial played a recording of Thompson
discussing the murder-for-hire plot. The appeals court upheld his capital
murder conviction, however.

************************

2 portraits of defendant emerge in murder-plot case


Prosecutors say store owner wanted distributor dead; her backers cry
entrapment

As police and prosecutors see it, Tabassum Anwar Bhimji was so angry after
an unpaid vendor pumped his gasoline out of her store's tanks that she not
only tried to have him killed but planned to "get in his face" before he
died.

But as her longtime attorney, who is not representing her in this case,
describes her, a far different picture of "Tabby" Bhimji emerges. He
depicts her as a woman who was left with small children and no business
expertise after her husband's death - and whose desperation and poor
command of English have led to her entrapment.

"I know her too well to believe that she would ever do something like what
they are saying," attorney Altaf Adam said Wednesday.

A jury in a Harris County court will be asked to sort out the truth.

Bhimji, 47, of Sugar Land, made her 1st court appearance Wednesday on a
charge of solicitation of capital murder. She had been held without bail
since her Oct. 24 arrest, but state District Judge Denise Collins set her
bail at $50,000 on Wednesday. No trial date has been set.

Prosecutors say Bhimji tried to hire someone to kidnap and kill Feroz Ali
Momin, a gasoline distributor, but that Houston police were tipped off. An
undercover officer from the police gang squad said he met with Bhimji on
Oct. 20 at her business, the R&B Meat Market at 23227 Snook in Tomball.

Bhimji had failed to pay for her latest gasoline delivery, and Momin
seized the remaining fuel from the tanks at the store, said Gary Johnson,
an investigator with the District Attorney's Office.

According to court documents, Bhimji told the undercover officer that she
wanted to have Momin kidnapped so she could extort $500,000 from him. The
officer said she added that she wanted to be present so she could "get in
his face" before Momin was killed.

The officer said he told Bhimji the kidnapping would cost $5,000 and the
killing would be $5,000 more. She agreed to those terms, he said, and then
he told her he would introduce her to the hit man later. That meeting was
never held.

Bhimji said she didn't care how the victim died and appeared unfazed while
negotiating the slaying, Johnson said.

"Very calm, like you're talking to a lady in a laundromat - 'This is what
I want,'" he said.

Adam said the case against her has no merit.

"It is just one of those entrapment issues," he said. "When the facts come
out, it will not result in any kind of conviction for her."

Adam withdrew as Bhimji's attorney of record Wednesday, saying it was best
for her to get another lawyer for this case because of possible conflicts
that could arise from previous cases in which he represented her.

Those included bankruptcies, as well as criminal charges involving checks
Bhimji had written with insufficient funds in her account, he said.

Bhimji, a naturalized U.S. citizen born in Pakistan, has been under severe
economic strain since her husband was killed in a traffic accident in the
Houston area several years ago, Adam said.

The couple had a store in South Houston that failed after her husband's
death, he said, and she lost her store in El Campo this year after filing
for Chapter 11 bankruptcy protection. The Tomball store is owned by her
family, Adam said.

"She's a widow whose husband died in a car wreck, and she was left with
several children," he said. "She doesn't have a command of the English
language, she doesn't have business experience, and she has been through
personal and business bankruptcies."

Bhimji's new attorney, Bill Portis, said Bhimji had done business with
Momin for years. She recently paid him with a $10,000 check that bounced,
Portis said, and she was trying to correct the matter when the vendor went
to her store and pumped fuel out of the tanks.

(source: Houston Chronicle)

********************

Mother, boyfriend charged with murder in baby's death


A baby who spent his first birthday hospitalized with injuries authorities
suspected were caused by severe shaking died Wednesday. His mother and her
boyfriend were charged with capital murder.

Angel Moreno was taken to the hospital Monday and spent the next day, his
birthday, in critical condition. The infant was left brain dead and died
after being taken off life support at Valley Baptist Medical Center.

Authorities filed capital murder charges against his mother, Acela Rosalba
Moreno, 25, and her boyfriend, Manuel Velez, 40, late Wednesday. A
magistrate denied bond for Moreno and Velez, citing their individual
criminal histories and deeming them flight risks.

Prosecutors will evaluate the case to determine if they can seek the death
penalty against Moreno and Velez, said District Attorney Armando
Villalobos.

"Anytime a human being is tortured like that, the persons responsible need
to be prosecuted to the fullest extent of the law," he said in a story in
Thursday's editions of The Brownsville Herald.

Deputies found the boy at the couple's home not breathing and without a
pulse Monday after a neighbor reported that an infant was choking. Deputy
Constable Felipe Coria revived the infant with mouth-to-mouth, then kept
him breathing until paramedics arrived, Cameron County Constable Abel
Gomez said.

Doctors found bruises and cigarette burns on the boy's body along with
rectal hemorrhaging and internal injuries, according to a probable cause
affidavit.

His mother told investigators that she burned the boy once on the foot
with a cigarette and that Velez bit and burned her baby with cigarettes
the other times.

Authorities have said Velez shook the baby in a fit of anger, which caused
the boy to have difficulty breathing.

"These people are sadists," Cameron County Sheriff Omar Lucio told the
newspaper. "They inflict pain and are people who have no hearts. How could
they do this to a defenseless baby?"

Child Protective Services took custody of the baby's 3 siblings, whose
ages range from 2 to 4.

(source: Associated Press)






ALABAMA:

Arrest made in double homicide in Stewartville


After D-N-A evidence was checked, 2 Sylacauga men are in the Coosa County
Jail on one (m) million dollars bond each on charges of capital murder,
robbery and burglary in a 2004 double homicide in Stewartville.

24-year-old Michael Wayne Hart was already in jail on other charges when a
grand jury brought an indictment against him Monday. Authorities later
arrested 22-year-old Kendrick Antonio Morris at his home in Sylacauga. The
2 were charged in the September 24th, 2004 killing of 65-year-old John
Lewis Thomas and Letitia A. Porch at their home in Stewartville.

Coosa County Sheriff Ricky Owens said the arrests were made after D-N-A
evidence linked Hart and Morris to the slayings.

**************************

Judge: trial of man in killing of two Athens cops won't be moved


A judge has ruled that the man accused of shooting and killing 2 Athens
police officers can get a fair capital murder trial in Limestone County.

Circuit Court Judge Bob Baker rejected a change of venue motion made by
defense attorneys for 30-year-old Farron Barksdale, who contend potential
jurors have made up their minds and news coverage has been inflammatory.

A grand jury indicted Barksdale on counts of capital murder and shooting
into an occupied vehicle in the deaths of Officer Tony Mims and Sgt. Larry
Russell on the January second, 2004.

Barksdale's attorney, Robert Tuten, said the judge's Tuesday decision not
to move the trial may be appealed.

Russell and Mims were ambushed as they arrived at the Athens home of
Barksdale's mother. Barksdale has pleaded not guilty and not guilty by
reason of mental disease and defect.

(source: Associated Press)






OHIO:

2 law schools unite in support of killer -- Taft urged to at least grant
another delay in the Spirko case


John G. Spirko Jr. maintains his innocence in the 1982 killing of an Elgin
postmistress.

Just 13 days before his scheduled execution, John G. Spirko Jr., his
attorneys and officials from 2 law schools turned up the heat yesterday on
Gov. Bob Taft and the courts to spare his life.

Spirko, 59, in a death row interview, repeated his claim of innocence in
the Aug. 9, 1982, abduction and murder of Elgin postmistress Betty Jane
Mottinger.

"I don't think there's ever been any case before this governor or the
people that had so much evidence, a mountain of evidence, that I'm
innocent," Spirko said. "Still, I'm running against a wall here. . . .
Where's the justice?"

Meanwhile, his attorneys filed an appeal with the 6 th U.S. Circuit Court
of Appeals as well as a new lawsuit in U.S. District Court alleging that
prosecutors are illegally withholding physical evidence that could contain
DNA pointing to another suspect.

At the same time, officials from Capital University Law School and the
Center on Wrongful Convictions at the Northwestern University School of
Law teamed up to urge Taft to commute the death sentence or at least grant
another reprieve to postpone the Nov. 15 execution.

"This is the weakest capital case I have ever seen reach this stage in any
state, including Texas, Florida and Alabama," Rob Warden, executive
director of the Northwestern center, said during a panel discussion at the
Ohio State University Moritz College of Law.

The drama and rhetoric fired up yesterday in Ohio's most controversial
capital punishment case since Wilford Berry, known as "the Volunteer," was
executed Feb. 19, 1999. Berry was the first person put to death in the
state in nearly 36 years.

While the courts are considering Spirko's appeals, Taft might be his last,
best hope. All county, state and federal courts have rejected appeals. The
Republican governor, who supports capital punishment, is reviewing a 6-3
recommendation against clemency rendered twice by the Ohio Parole Board.
Spirko was the 1st death row inmate to receive 2 parole board clemency
hearings; the result was the same both times.

The panel yesterday rejected Spirko's request for a 3rd hearing.

Taft previously granted a 2-month reprieve for Spirko, the 1st time he has
done that in 18 cases. He commuted one death sentence, that of Jerome
Campbell, of Cincinnati, in 2003.

The latest issue raised by Spirko's attorneys involves the tarp wrapped
around Mottinger's body when it was found in a farm field 6 weeks after
her disappearance. Based on new allegations by John Willier, a house
painter and former Van Wert County resident, the attorneys say the tarp
might contain DNA from Mottinger's real killers that would help clear
Spirko.

County prosecutors and Attorney General Jim Petro have declined to submit
the tarp and other items for testing, but they also haven't ruled it out.

"We have told them that we're reviewing that request," Petro spokeswoman
Kim Norris said. "We want to see what's available that was entered into
evidence in the case and what condition it's in. It may not prove anything
or be relevant to the case."

Spirko's attorneys have known about the tarp for more than a decade but
only last year asked that it be tested. The courts rejected the request.

"We had such a strong case," attorney Alvin Dunn said yesterday, "we
didn't think that would be necessary."

Norris said Petro disputes the claim that the state's case against Spirko
has collapsed after 23 years.

"This is a case that has been reviewed by a number of courts. They all
arrived at the same conclusion."

In an interview at the Mansfield Correctional Institution conducted by The
(Cleveland) Plain Dealer for the Statehouse news media, Spirko said the
case against him is "rotten to the core."

He said he initially offered evidence about Mottinger's death in hopes of
striking a deal with prosecutors for his girlfriend, who was facing
unrelated charges.

"I testified and I lied my ass off."

Spirko, who served 12 years in prison for killing an elderly Kentucky
woman, said he was prosecuted unfairly.

"You can condemn me for my past and I can't say nothing about that. . . .
My God, I didn't do this! You got guys out there killing folks and you are
going to execute an innocent guy? Just to say justice is served?"

(source: Columbus Dispatch)

***********************

Spirko files civil rights suit to get evidence


Attorneys for John Spirko yesterday filed a federal civil rights lawsuit
in an attempt to force the state to produce 23-year-old evidence for DNA
testing they say could point to a different perpetrator.

With his execution for the 1982 kidnapping and stabbing of a rural Van
Wert County postmaster now 12 days away, Spirko is asking the state to
conduct modern DNA tests on the paint-spattered drop-cloth that shrouded
Betty Jane Mottingers body as well as other evidence.

In the alternative, they want the evidence produced so they could order
the tests themselves. The suit was assigned to U.S. District Judge David
Katz in Toledo.

The FBI has already turned Spirko down, and the Ohio Parole Board has
refused to reconsider its 2 6-3 votes recommending Gov. Bob Taft not stop
or delay Spirkos execution by lethal injection. Spirkos lawyers have yet
to hear from Attorney General Jim Petro.

"Our goal is to find out what still exists, what condition it's in, and
whether it was ever entered into the trials evidence," said Petro
spokesman Kim Norris.

Spirko attorney Alvin Dunn said there has never been any suggestion over
the years that the evidence no longer exists.

"It certainly existed at the time of trial," he said.

Mr. Dunn noted forensic tests were conducted on the drop-cloth, an old
theatrical curtain, but the tarp itself was not produced at trial because
of the overwhelming stench.

Spirko tried last year to convince a Van Wert judge to force the issue
under a state law opening a 1-time window for DNA tests for inmates who
can demonstrate such evidence may exonerate them. The judge ruled that,
even if the tests pointed to the presence of someone other than Spirko, it
would not prove Spirko wasnt there. The one-time window has since closed.

The prosecution has long maintained Spirko committed the crime with former
Kentucky cell mate Delaney Gibson, even through Gibson was never tried for
the crime and has been since been paroled in Kentucky on an unrelated
murder conviction.

No physical evidence tied Spirko to the crime. He was largely convicted on
statements he made to investigators that the state maintains only someone
at the crime would know, and by eyewitness testimony placing Gibson at the
scene.

Steven Drizin, law professor at Northwestern University and legal director
for the schools Center on Wrongful Convictions, said DNA samples of other
persons on the paint-spattered drop cloth or other items would raise new
questions.

"The burden then shifts to the state to say they can connect John Spirko
to whoever is profiled," he said. "And if they can't, then theres more
than enough reasonable doubt in this case to undermine the jury's
verdict."

Spirko's lawyers are particularly interested in comparing any DNA
recovered from the evidence to that of Dale Dingus, a former Findlay house
painter now jailed in Louisiana for rape.

In 1997, John Edwin Willier, a former Findlay man living in Tennessee,
told Wyandot County investigator Bill Latham that Dingus, his former boss,
admitted abducting and killing Mrs. Mottinger.

(source: Toledo Blade)






FLORIDA:

30-year Florida death row inmate loses another appeal


Thomas Knight, who has been on Florida's death row for 30 years, longer
than all but 3 other condemned inmates, lost an appeal Thursday in the
state Supreme Court.

The justices voted 7-0 to reject the latest in a series of appeals from
Knight, 54, who has 2 death sentences for the 1974 murders of Sidney and
Lillian Gans of Miami Beach.

Knight, who changed his name to Askari Abdullah Muhammed while in prison,
received a 3rd death sentence for fatally stabbing prison guard Richard
Burke with the sharpened end of a spoon in 1980.

Knight had a criminal record when he was hired by Sidney Gans, who owned a
paper bag company and made it a practice of giving ex-convicts a second
chance. Knight abducted him from the company's parking lot at rifle-point,
forced him to drive home where they picked up his wife and demanded
$50,000.

They drove to a Miami bank where the company had an account and officials
there alerted police. Knight then took the couple to secluded part of
southern Miami-Dade County and killed them as police closed in.

The Supreme Court also turned down an appeal by another death row inmate,
Ernest Whitfield, 38, who fatally stabbed Claretha Reynolds, a Sarasota
mother of 5, in 1995.

(source: Associated Press)






VIRGINIA:

Governor Warner Should Save Robin Lovitt from death row


Robin Lovitt, who has been on death row since March 1, 2000, has now been
rescheduled for execution on November 30. On July 11, 2005, the United
States Supreme Court granted the Virginia death row inmate a glimmer of
hope. Amid claims that he could prove his innocence if DNA evidence used
at his trial had not been destroyed, the Court decided to stay Lovitts
execution and consider whether his appeal merited further review. Last
month, however, the High Court shattered Lovitts hope when they decided
not to hear his case. Lovitts final appeal for justice now rests solely on
the shoulders of Virginia Governor Mark Warner.

Lovitts long and unsuccessful crusade through state and federal courts is
a story many claim is marred with countless instances of injustice. It
began when he was convicted of fatally stabbing a man with scissors during
a 1998 pool hall robbery in Arlington, Va. But since his 1999 conviction,
Lovitt continues to insist that although he committed the robbery, he is
innocent of murder.

During Lovitts trial, low-level DNA evidence was deemed "inconclusive" as
to whether he was the perpetrator. But history has shown that previously
inconclusive DNA evidence can later be deemed "conclusive" upon further
analysis. The case of Earl Washington, Jr., who was convicted of rape and
murder, illustrates this fact. Washington spent 9 1/2 years on death row,
only to be exonerated 9 days before his scheduled execution when a
re-examination of previously inconclusive DNA evidence proved his
innocence.

In response to the alarming reality of inconclusive DNA evidence in the
Washington case, Gov. Warner ordered the re-examination of low-level DNA
evidence for many death row inmates. But although Lovitt was among this
group, his chances for exoneration were dealt a devastating blow when the
DNA evidence that might have spared his life was destroyed by the chief
clerk of the Arlington Circuit Court.

Two clerks at the Arlington County Circuit Court testified that they had
advised their superior, Robert McCarthy, not to destroy the evidence from
Lovitts trial. But McCarthy destroyed it anyway, in violation of the law
and in violation of Robin Lovitts right to have the evidence re-examined.

Consequently, Lovitt once again turned to the courts, appealing to the
Supreme Court of Virginia, the District Court for the Eastern District of
Virginia and the Fourth Circuit Court of Appeals. At every stage, his
claim was denied. The Fourth Circuit even went so far as to declare that
although McCarthy made a "serious error in judgment," Lovitt was not
entitled to relief because he could not prove that McCarthy destroyed the
evidence in "bad faith." The U.S. Supreme Courts subsequent refusal to
hear the case in Oct. 2001 seemingly left Robin Lovitt with no further
legal recourse.

During the next 4 years, while Lovitt sat on death row, his attorneys
continued to fight in the courts to save his life. However, after
exhausting all legal claims, Lovitt was scheduled to be executed on July
11, 2005, barring a stay of execution by Gov. Warner or the U.S. Supreme
Court. Warner refused to act. Then, moments before his execution, Lovitts
despair turned into hope when prison officials received word that the U.S.
Supreme Court had granted his stay - temporarily sparing his life.
However, the stay only offered the Supreme Court justices the opportunity
to consider whether they would hear his claim. And, in a disappointing
move on Oct. 3, 2005, the Supreme Court, without explanation, refused to
hear Lovitts arguments. Immediately afterward, Virginia officials, for the
second time, scheduled Robin Lovitts execution date.

Now, Lovitts life undoubtedly rests with Gov. Warner. Barring a commute by
Warner, Robin Lovitt will be put to death by state execution on Nov. 30,
2005. Warner has a chance to do the right thing. He has the opportunity to
take a stand for fairness and justice by ensuring that a potentially
innocent man is not put to death.

Indeed, Gov. Warner is in a unique position to ensure that the right to a
fair and just judicial process, afforded to every American by our federal
and state constitutions, is not jeopardized by government carelessness.
The Governors authority to commute death sentences is reserved
specifically for situations like this one. Yet, if Warner does not
acknowledge the governments wrongdoing in this matter and fails to commute
Lovitts sentence to life in prison, the same injustice will likely occur
in the future.

No matter what Warner decides, it will have an impact on Virginians.
Either the misdeeds of government officials will continue to be protected
or the Governor can send a message to government officials that errors of
such magnitude when dealing with matters of life and death will not be
tolerated.

Although Warner is to be commended for his decision to review death
penalty cases involving low-level DNA evidence, he needs to take the next,
but crucial, step of ensuring that accountability and fairness are not
only aspirations but also realities. With Nov. 30 fast approaching, Robin
Lovitts death sentence should be commuted to life in prison. Turning a
deaf ear on this issue will not solve the problem. It will occur and
reoccur so long as government actions remain protected. With Robin Lovitts
life and the lives of other Virginians at stake, fairness and government
accountability must be held to the highest standard.

Although Virginians are in the midst of a gubernatorial election stained
with images from demeaning, negative campaign ads - many of them focusing
on the death penalty - it is critical that we realize that this case is
not about whether the death penalty is good policy or whether it is
morally justified. This is a case about basic fairness and the need for
government accountability through executive checks and balances. It is a
case about ensuring that no innocent person falls prey to reckless
government action. And it is a case about erring on the side of caution
when a persons life is at stake. Among all the actions of government,
there are none that carry greater risks and responsibilities than ensuring
a person's guilt before terminating his life. Clearly, Gov. Warner should
save Robin Lovitt from death row.

(source: Rutherford Institute; Constitutional attorney and author John W.
Whitehead is founder and president of The Rutherford Institute and author
of the award-winning Grasping for the Wind)