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Ken Starr's Uphill Battle

This is a partial transcript from "On the Record," April 18, 2005, that has been edited for clarity.

GRETA VAN SUSTEREN, HOST: A man convicted of murdering a night manager at a pool hall in Arlington, Virginia is on death row awaiting execution. But, if our next guest has his way, he won't be there for long.

Joining us from Los Angeles is Ken Starr (search), Dean of the Pepperdine School of Law and former independent counsel and former Solicitor General of the United States and former judge of the United States Court of Appeals for the D.C. Circuit and now death row attorney. He's representing the convict on appeal, welcome Ken.

KEN STARR, PEPPERDINE SCHOOL OF LAW: Good to be with you, Greta.

VAN SUSTEREN: All right, Ken, your client is on death row. Why is he on death row?

STARR: He was convicted of capital murder in Arlington County, Virginia five years ago and he maintains his innocence and we were asked to come in at the post trial stage and to talk a look at the evidence. And my law firm, Kirkland & Ellis, took the case on pro bono and there are a number of issues, Greta, that are very troubling about the case.

VAN SUSTEREN: All right, so what's the most troubling issue to you Ken?

STARR: The most troubling is the destruction of DNA evidence (search). We've come to know, Greta, in death cases how important DNA evidence is. A number of states, including Virginia, have laws now that say protect this evidence.

We know that innocence has been proven, even though the evidence of guilt seemed to be strong, when the DNA evidence came in. Scientific evidence is so important.

And unfortunately here and really tragically while the case was still proceeding to the United States Supreme Court in the initial phase, the clerk's office destroyed the evidence and that has prevented Robin Lovitt from now proving his innocence.

He maintains his innocence and the case itself is troubling in another very fundamental respect and that is he had a very largely non-violent record. He had a drug problem. There is no question that he had a terrible drug problem.

But that doesn't mean that an individual where the evidence was circumstantial and weak should have to face the situation, as Robin does, of being unable to prove his innocence.

That action was taken, by the way, Greta, in violation of the specific state laws. We're not just talking about a procedure and common sense. We're talking about a state law in Virginia that was passed overwhelmingly by the legislature, signed into law by the governor and that was violated here.

VAN SUSTEREN: You know, Ken, so often we get into these post-conviction discussions about DNA because defendants don't have the right or don't have the wherewithal or the money at the outset at trial. I take it he didn't have the money for DNA at trial is that fair?

STARR: No, in fairness there was some DNA testing but there was not the kind of sophisticated testing that is now available five years later and the Commonwealth of Virginia, to its credit, does agree and the Attorney General's Office of Virginia does agree, to its credit, that further testing could in fact be done.

This was a circumstantial case. There were no fingerprints of Robin at the crime scene. We know that he was present at the pool hall but the issue is who did it? No blood was found on his clothes and the like and so there are just a number of things that make the DNA evidence and now the destruction of that evidence very problematic, very troubling.

VAN SUSTEREN: All right. The destruction was accidental, not intentional. That seems to have made a difference to the Court of Appeals. But the end result is the same. There's no testing, right?

STARR: There's no testing but it actually was not accidental. It was deliberately done. What the courts have determined is that it was not in bad faith. But what we do know and right now our principal submission is this, look, we're not trying to get into motives here.

The evidence is the evidence was destroyed in the face of two individuals in the clerk's office saying, "This is a death case. We don't destroy evidence until the conclusion, the true conclusion of the case" so that was done here.

But you're exactly right the key point is not so much finger pointing but the fact is the DNA evidence does not exist and it's supposed to exist under the law of the state. This isn't a lawyer's argument. This is the undisputed law of the State of Virginia.

And the president of the United States spoke to the importance of this generally in the State of the Union message. If we're going to have the death penalty, and we do, we need it to be administered fairly.

VAN SUSTEREN: How frustrating is this for you? I mean you've had virtually every job in the criminal justice system. Now you're a death penalty lawyer for lack of a better term -- I mean how frustrating is this for you? You've been ruled against in the 4th Circuit. The Supreme Court is basically your last hope for your client.

STARR: Well, there's always an appeal to the governor in terms of clemency but you're exactly right. In terms of our appellate procedures we now, as of tomorrow, will be having a petition for a hearing before the Court of Appeals. But you're right and so it is frustrating.

We obviously abide by the decisions of the courts and we respect the courts greatly. We know they're trying to do their job but at the same time here's the bedrock fact that this evidence has been destroyed by the clerk's office and here is someone on death row who is saying "I'm innocent" and that can't be proven. It's a very, very frustrating and very tragic situation.

VAN SUSTEREN: Thirty seconds left. It's unfair isn't it?

STARR: I think it is frankly. There are other issues, including the fact that Robin had a horrific childhood, and that evidence, Greta, was not brought before the jury. We think that's a very important dimension in terms just of the fairness of all this.

VAN SUSTEREN: And the ultimate penalty, of course, is not life in prison but in this instance, of course it's execution, Ken nice to see you. Thank you.

STARR: Good to see you, Greta.

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