Mark Warner, Batting a Thousand

It's Powerball, only Shirley Jackson style. You don't get the millions. No steak knives or press-on nails. You just endure three different chemicals being pumped into your bloodstream -- paralyzing your muscles, putting you to sleep, and stopping your heart -- and you're dead.

But yesterday, Governor Mark Warner of Virginia granted clemency to Robin Lovitt -- denying Lovitt the dubious distinction of becoming the 1,000th person executed in America since the Supreme Court reinstated capital punishment in 1976.

Rest assured, there will be a thousandth person executed. Fact is, it seemed unfair there, didn’t it, that the 1,000th wasn’t going to be executed in Texas? Texas, after all, has executed 353 people since 1976. This year alone, the state had executed 17 as of mid-November. That’s right. Spread out evenly across a year, executions occur more frequently in Texas than the common menstrual cycle. Had the 1,000th execution occurred in Virginia, I’m thinking that many Texans would have felt bittersweet. The same way you feel when your team wins the World Series, but nabs that fourth win in the opponent’s ballpark, and not in front the hometown fans.

But as for Virginia, Governor Warner — as of today, the only cell phone industry millionaire I've ever actually wanted to wrap in a bear-hug -- can at least sleep tonight knowing he did the right thing. Even when political expediency was pushing him in the opposite direction. Even when his own record and the history of his state would not have predicted yesterday's events.

Mark Warner is no death penalty opponent, and had never before granted clemency during his nearly completed four year term – a term which saw eleven executions in his state. And Virginia is one of the most prolific states when it comes to tinkering with the machinery of death: as of January 1 of this year, the state had executed 94 people since 1982. A number exceeded only by the Lone Star State.

Also, if you’re planning on getting caught in a perfect storm of circumstances leading to your wrongful incarceration? Try not to do it in Virginia. It isn’t the easiest place to seek exoneration and get off of death row. There’s the state’s extremely unique 21 day rule, which keeps you from introducing any new evidence (say, some useful DNA) in any of the appeals courts once 21 days have passed since the judgment order. Which means, if you’ve just been convicted? Better hope and pray some mighty helpful DNA evidence manages to float up to the surface in those three weeks. Three weeks: roughly the same amount of time I get to pay my Citibank Visa bill every month.

But it gets better, if by "better," you mean, "Franz Kafka is in the backroom, gorging on Chocodiles, belting down Shiner Bocks, and hitting on your sister." The circuit court in Virginia is under no obligation to preserve evidence from trials once they have concluded. In many cases, the evidence is destroyed. Kinda hard to push for your release when crucial evidence has been thrown away. Just ask Robin Lovitt himself, the man who almost became numero 1000. Lovitt had been convicted of using a pair of scissors to kill a pool hall manager in a DC suburb in 1998.

Small problem. A Virginia court clerk had thrown the scissors out after Lovitt’s conviction had been affirmed by the Virginia Supreme Court, but before he filed a federal court petition. Those scissors contained the DNA of the victim’s blood, but were “inconclusive” for anyone else’s DNA and had no trace of Lovitt’s fingerprints. Lovitt’s original conviction relied upon some of the old standbys of anyone who has followed wrongful conviction – claims of a jailhouse confession to a snitch, eyewitness “almost certain” IDs that are so often bogus, and so on.

But even if Lovitt committed the crime, Lovitt’s right to a fair appeals process was what Mark Warner recognized today. “The commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly,” said Governor Warner in his clemency statement, commuting Lovitt to a life sentence in prison with no chance of parole.

I'd be impressed with Warner giving this clemency in any climate or any year. (Just as it should be noted that one of the main lawyers who was fighting on behalf of Lovitt was – wait for it – Kenneth Starr. Go figure.) I'm supposed to be impressed. I'm against the death penalty, and we take these little victories when we can get them. But Warner's actions should impress you even if you're a supporter of the death penalty. How so?

Warner is one of those names. You know: the names. I'm talking big brass ring, prime-time, Cedar Rapids and Nashua are gonna get to know you real well, real soon kind of '08 names. And if they were talking about Warner before November, they’ve really amped up the chitter-chatter about him after he pushed his chosen heir, Tim Kaine – who himself opposes the death penalty for religious reasons – to succeed him as the governor, all in a state Bush won big in both 2000 and 2004.

So, in the face of his nascent pre-primary hype, what does Warner do? When most strategists would tell him that it would be soft on crime to give anybody clemency as you prepared to make your debut on the national stage… when visions of Willie Horton and a thousand hypothetical 30 second spots dance through the pundits’ heads -- Warner goes and does the right thing. And screw the political consequences.

That’s strength. That’s courage. That’s having big ones, the size of Ford Tempos, hanging to your ankles. And Mark Warner just jumped several rungs up on the little list I carry in my back pocket of 2008 presidential contenders.

I wish I was seeing those kind of risks, that level of courage, from the other Democratic names. I wish I was celebrating and cheering on the words of ’08 hopefuls the way that I find myself cheering on John Murtha, Norm Dicks, and ol’ Robert Byrd. And yes, I wish I had ever seen those kind of risks being taken by the name that everyone keeps mentioning as the one to beat.

The Senator whose husband’s actions in another time of presidential aspiration were the opposite of Mark Warner. Whose husband flew from New Hampshire to Arkansas during the ’92 campaign so that he could sign the death warrant of Ricky Ray Rector. Rector, if you’d kindly remember, had shot and killed a cop in 1981, and then shot himself in the head; he survived, but was left a simpleton, so mentally disabled that when he was to be executed, he left his dessert from his last meal so that he could save it for later.

Bill Clinton – in the midst of the Gennifer Flowers debacle and trying to stage a comeback for the New Hampshire Primary – flew back to Arkansas to sign all the paperwork and prove that he was tough on crime. Rector was executed on January 24, 1992.

But that’s Bill. What, then, of Hillary? I had friends who saw her in recent fundraisers, and they told me she said the right things, that she was more charismatic than they expected (Kinda like how when I went and saw The Island in a nearly empty theater this summer and was glad to find that it wasn't all that shitty!), that she seemed to be hitting the right notes.

Only, this isn’t 2000, when New Yorkers voted for her and Dems across the country wrote checks, out of continued faith that she had been, no, she must have been, the lone progressive voice balancing out the moderate DLC hacks during those eight years. (So much faith coming out of her having worked a couple of years for Marian Wright Edelman during the ‘70s. Reminds me of friends who think that if they keep buying Paul McCartney solo albums, eventually the Paul who wrote "Blackbird" and "I'm Looking Through You" will show his face again.)

Well, we now have a Hillary Clinton record. Four years in the Senate. But I’m not asking you to tell me if that record's conservative or liberal. All I’m asking is for you to show me an instance when she has taken a policy stand that was courageous, not cautious. When she was willing to voice a position on any issue where her stance was brave, and not just following Penn and Schoen’s pulse-taking on the current vox populi. She sure hasn’t been doing it on gay marriage: I saw her on television recently explaining why she was against it – and the senator represents a state where gay-friendly Republican politicians may as well be the state bird. (And if she's suddenly going to come out for Iraq withdrawal now -- it's only a matter of time before that stance will be the equivalent of her wearing a mesh trucker hat in the East Village on Bridge and Tunnel night.)

If a Hillary supporter can point me to one decision or vote she's made in the last four years where she took a stand that went against her best political interests – I’ll buy the first beer. (Obligatory disclaimer: Literally, the first beer to one lucky reader. I'm not buying five thousand people their first beers of the evening. End of obligatory disclaimer.)

Say what you want to about John Kerry – and lord knows, I’ve said a lot of things about John Kerry, occasionally even without the presence of alcoholic beverages in my system or my fists belligerently waving at the heavens -- but he was one of only 14 Democrats who had the courage to vote against the so-called Defense of Marriage Act – a bill of prejudice and fear encouraged by a Democratic president in 1996, a presidential election year, as a little hateful shotglass of Dick Morris triangulation.

In that one vote, Kerry made a choice that he would not be seen by later generations the way we today look upon Orval Faubus and George Wallace, barricades on the road of another civil rights movement’s progress.

In that one vote, Kerry would not stand in the doorway against progress, but instead stand for equality. Even though he had ample presidential ambitions. Even though he himself was in the fight of his senatorial life that year against a very popular Governor Weld. Even though he knew his vote would be red meat for the fund-raising letters and “family values” platforms of a hundred GOP grass roots pamphlets when he would eventually run for president – and so it was.

Say what you will about John Kerry. But when he voted against DOMA, he did the right thing when few others did.

Say what you will about Mark Warner. But on Tuesday? He did the right thing, too.