A Question of Culpability

This could prove harder than it seems. In court, defense attorneys have described the case as "right on the edge," and prosecutors have spoken about the difficulty of finding detailed sources of information about Atkins's childhood and teenage behavior.

Much of the trial may become a battle of the experts, with disparate opinions about the meaning of IQ scores and with both sides reaching beyond IQ to interpret Atkins's behavior as a child and teenager.

Prosecutors have consistently maintained over the years that Atkins was intelligent enough to use a firearm and hide his involvement in the robbery during his police interview. Eileen Addison, commonwealth's attorney in York County, told a reporter in 2003: "I know people who are truly mentally retarded, and Daryl Atkins is not one of them."

As the trial is about to open, civil rights activists have weighed in. Carmen Taylor, president of the Hampton branch of the NAACP, said all indications are that Atkins is either mentally retarded or close to it. "Why is it so important that the prosecutors go after Daryl Atkins?" she asked. "We believe that because of the Supreme Court decision, this case should not be going forward."

On Atkins's side at trial, as in the past, will be psychologist Evan Nelson, who recently retested Atkins's IQ and got higher scores: 67 and 74.

In a recent psychological report -- prepared for defense attorneys and obtained by The Washington Post several months ago from other sources -- Nelson estimated Atkins's true IQ as "somewhere in the mid- to upper 60s" and pointed out that IQ tests have an error margin -- of up to 5 points -- and are rarely fixed precisely, but rather within a range.

Nelson argued that the higher score was understandable, given how many times Atkins has taken the IQ test, how long the test has been around and "eight years of continuous incarceration, which was almost one-third of his life."

"Oddly enough," Nelson wrote, "because of his constant contact with the many lawyers that worked on his case . . . Mr. Atkins received more intellectual stimulation in prison than he did during his late adolescence and early adulthood."

Atkins, he said, practiced reading and writing, learned about abstract legal concepts and communicated with professionals. He "was in a single cell with little more than a television for company, and his favorite show was the History Channel, creating a forced march towards increased mental stimulation."

Prosecutors see it much differently. At a recent hearing, they described Atkins's lowest score as "tainted." When a prosecution expert tested Atkins, he scored 76. "I don't see how a 76, even minus 5 points, is exculpatory and evidence of mental retardation when my understanding is it needs to be below 70," Addison, the prosecutor, said in court.

Among the prosecution's chief experts will be Stanton Samenow, the psychologist who testified for prosecutors in 1999 and later described Atkins in his book, "Inside the Criminal Mind." Atkins was featured in the chapter "Getting Over on the Shrinks."

"There is no way," Samenow wrote, "that a person who held the conversations I did with this man could reasonably conclude that he was mentally retarded, despite his low IQ score." Samenow said Atkins had composed rap lyrics and spoken of a recipe for chicken.

One obstacle in Atkins's case -- and others like it -- is that his abilities were not well evaluated as a child. He was not given an IQ test during that time. And though middle-school teachers recommended him for special-education screening, he was never tested or enrolled, according to the psychological report prepared for the defense.

One of his high school teachers -- cited in the report -- recalled Atkins as a teenager desperate for the approval of his peers and "the kind of kid that [would sit] in the back of the classroom with a big smile on his face and not understand anything. . . . Somebody who is retarded stands out like a sore thumb, and he was one."

Another high school teacher said Atkins was "just one of those that fell through the cracks. I think that's what happened with Daryl."

His parents, who divorced when he was about 7, recall that Atkins -- born with six fingers and six toes -- was always "slow" as a child and that as a teenager had poor hygiene and could not do his laundry, follow a recipe, operate a lawn mower without supervision or fill out a job application accurately, the report said.

This is the state's first such jury trial, and how jurors interpret those recollections -- and weigh them against others brought forward by prosecutors -- is hard to say. The defense must prove retardation "by a preponderance of the evidence," a lesser standard than "beyond a reasonable doubt."

John Blume, a Cornell University law professor who has followed similar cases nationally, observes: "It's a little bizarre when you think about it, that life or death can ride on an IQ point or two."

Staff researcher Bobbye Pratt contributed to this report.