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A Question of Culpability
Mental Capacity of Convicted Virginia Man Is a Murky Legal Issue

By Donna St. George
Washington Post Staff Writer
Saturday, July 23, 2005

At 18, Daryl Atkins had racked up a childhood of failures. He flunked out of second grade, barely made it through fourth, and took home a heavy load of D's and F's on his report cards. By high school, a teacher decided to put the books aside to focus him on more practical skills: reading menus, understanding road signs.

This was around the time that Atkins failed driver's education and did so poorly at football practice that he was kicked off his high school team in Hampton, Va. The teenager regularly confused his right with his left and had trouble learning plays, according to a recent psychological report.

Now, a decade later, there is a fierce debate about whether these details and others demonstrate that Atkins is mentally retarded. Prosecutors argue that he is not, with one of their experts pointing out his use of such words as parab le and deja vu and his recitation of the mathematical value of pi.

At a trial that will start Monday, a jury in York County will decide the issue, knowing that a death sentence hangs in the balance. Unless Atkins is deemed retarded, he faces execution by the State of Virginia.

His unusual trial -- for the carjacking murder of a young Air Force mechanic -- comes two weeks after the U.S. Supreme Court stayed the execution of another Virginia inmate and at a time of heightened scrutiny about how the death penalty is carried out nationally.

The Atkins case was part of that scrutiny in 2002, when the U.S. Supreme Court ruled in Atkins's favor with a ban on executions of the mentally retarded. The court said the practice amounted to "cruel and unusual punishment" for inmates such as Atkins, who experts said has an IQ of 59 and a mental age between 9 and 12 years old.

Nationally, the landmark ruling has changed the fate of dozens of other inmates, whose death sentences have been commuted to life in prison. But in an irony of the legal system, Atkins was not among them because the U.S. Supreme Court never weighed in on the issue of whether Atkins is retarded.

It sent that question back to Virginia to be sorted out.

And so it is that inside the same tidy courthouse where Atkins faced trial in 1998, the same bespectacled judge will preside and the same prosecutor will push for execution as the same defendant will face another jury. This time, the issue is not guilt, but culpability.

As it turns out, only Atkins's deficits can save him.

Hitting Bottom

In August 1996, Daryl Atkins was 18 years old, without a job or a plan -- and on a down slide. He had dropped out of school that year, not having made it past 10th grade, and was using marijuana and crack. In recent months, he had joined in a string of robberies. Most recently, he set out to rob a woman on his own and wound up shooting her in the stomach without taking money.

Now, on a Friday, his friend William Jones dropped by, and the two passed hours drinking beer and gin and smoking marijuana. Jones was eight years older, a neighbor and restaurant dishwasher with whom Atkins had committed a break-in that summer. Sometime after 11:30 p.m., Atkins and Jones wandered to a 7-Eleven with a borrowed gun.

There they flagged down Eric Nesbitt, a redheaded airman from Upstate New York stationed at nearby Langley Air Force Base.

At 21, Nesbitt was helpful by nature, the oldest of six children, an Eagle Scout. In high school, he ran track, worked on a dairy farm part time and volunteered with the local fire and rescue squads. After graduation, he joined the Air Force and was up for his first big promotion; he already had new uniforms bearing his higher rank lined up in his closet.

That night, Nesbitt had worked an evening shift at his second job in an auto parts store, then stopped at 7-Eleven for a Mountain Dew and corn chips on his way home. He was driving his beloved Nissan pickup when Atkins and Jones shoved their way into his truck.

Jones took the wheel, and Atkins took money from the airman's wallet: $60, he later testified. They drove to an automated teller machine, where they ordered Nesbitt to withdraw $200 more -- and where a bank camera photographed them.

Driving away, Atkins and Jones talked about tying Nesbitt up and leaving him somewhere. "Yes, tie me up," the airman had urged, according to Jones's testimony, "as long as you just don't hurt me."

But once they stopped, in a secluded area of York County, everything changed. In a matter of minutes, Nesbitt was down, struck by eight bullets and left to die by the side of the road. Atkins was shot in the leg.

Both Atkins and Jones would later say the other man pulled the trigger. Jones told his story at Atkins's trial as part of a plea agreement that spared him the possibility of a death sentence. Atkins took the stand, too, but prosecutors stressed how lies he told in a police interview -- and a jail cellmate testified that Atkins admitted to shooting at Nesbitt.

Atkins talked about being so high that he shot himself in the leg, said the cellmate, who quoted Atkins as saying he "shot at the boy to scare him, and that he freaked out."

Two Death Sentences

A day after Atkins was convicted of murder, in February 1998, a forensic psychologist told jurors that Atkins was mentally retarded, with a history of failure in school and an IQ of 59, in the lowest 1 percent of the U.S. population.

"Being mildly mentally retarded does not mean you're necessarily illiterate," the psychologist, Evan Nelson, told jurors at the sentencing. "It means it's harder to reason; it's harder to learn any kind of new information or skill. It's harder to get a job."

Atkins's attorneys pleaded for a life sentence, based on his mental deficiencies.

But on Feb. 14, 1998, the jury voted for a death sentence.

About a year later, there was a turn in the case that brought Atkins a second chance. On appeal, the Virginia Supreme Court ruled that jurors had been given an improper verdict form. The court ordered a new sentencing.

This time, prosecutors brought in Stanton Samenow, an Alexandria psychologist well known for arguing that criminals are responsible for their violent conduct and discounting such influences as childhood abuse and mental illness.

Samenow told the jury that Atkins could name the president and governor; that he knew how many pennies and nickels are in a dollar; and that he had boasted of watching "Jeopardy!" and "Wheel of Fortune" and solving "the puzzles before anyone else can."

The psychologist read a transcript of part of their discussion in prison.

"Do you think that you're basically a good person?" Samenow asked.

"Half and half," Atkins said. "There's the half that doesn't want to get into trouble, all the positive stuff."

Samenow said he had not given Atkins a full IQ test but concluded that he was "of average intelligence, at least." He said Atkins failed in school because of disciplinary problems, laziness, poor study habits and lack of motivation. "It wasn't a matter of lack of ability," he said. "It was a matter of lack of performance."

He said that Atkins "chose to have a certain way of life."

The defense psychologist, Nelson, also testified to the new jury, reiterating his descriptions of Atkins's school history and low IQ. He said there was no sign of a faked result on Atkins's IQ test and noted that mentally retarded people often overestimate their abilities -- saying they can cook, for example, when they can only heat a Pop-Tart.

"Folks tend to think that someone who is mentally retarded is . . . not able to use imagination, can't do anything on their own, drools with their mouth open, has a thick head, abnormal speech -- and that's not true at all," Nelson told them. "There are many mildly mentally retarded folks who are able to live reasonable lives with some assistance."

For a second time, on Aug. 19, 1999, a jury chose death for Daryl Atkins.

A Mother's Anguish

The first time she heard the suggestion that Atkins might be mentally retarded, Mary Sloan was taken by surprise. He had killed her son in a crime that, to her, clearly took planning and forethought. "His actions didn't indicate he was retarded at all," she said from her home in Gilbertsville, N.Y. "I thought they were grabbing at straws, trying to use anything to get him off."

Sloan said she supported Atkins's execution because of the terror her son must have experienced on the long drive to his death, the number of times he was shot and how he begged for his life. Atkins already had been given a life sentence for his other crimes, and she felt something more was needed.

"It was just unbelievable, the kind of things that he did, and it seems like the only sentence that would bring justice," she said.

The case was on appeal at a time of change regarding capital punishment, however, with mounting concern about wrongful convictions and about whether some offenders should be exempt from execution -- juveniles and the mentally retarded, for example.

In February 2002, Sloan gathered up four of her five children and drove the family to Washington for oral arguments before the U.S. Supreme Court. She recalls hearing less about the particulars of the crime than about the national landscape -- how many states had outlawed executions of the mentally retarded, how many had not.

On June 20, 2002, the U.S. Supreme Court ruled 6 to 3 that the country had formed a national consensus against executing the mentally retarded. Banning the practice, the court said the retarded should be punished for crimes but should not be put to death because they are less morally culpable, with weaknesses in reasoning, judgment and impulse control.

"They have diminished capacities to understand and process information, to communicate, to abstract from mistakes," the court said. In legal matters, they "may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes."

The court also concluded that "mentally retarded defendants in the aggregate face a special risk of wrongful execution."

When Sloan heard about the court's decision in Upstate New York -- where she lives in a farming community and works as a substitute teacher -- she was disappointed, believing that Atkins was not the right man for the larger issue. "I think he's probably not the brightest bulb in the pack," Sloan said, "but I don't think he's mentally retarded."

For the upcoming trial, Sloan and her husband will drive to Virginia. Most of Nesbitt's brothers and sisters will attend at various times. "He was their big brother," she said. "He was the one they all looked up to."

Many Interpretations

As the trial opens Monday, Daryl Atkins, now 27, will be seated beside his attorneys in a small, red-brick courthouse in the historic district of colonial Yorktown, about 35 miles from Norfolk. In recent hearings Atkins has appeared older than his years, balding and impassive in a prison jumpsuit, saying almost nothing as hours go by.

Jurors must decide whether the man they see and hear about over the next two weeks fits the definition of mental retardation. More than 90 witnesses could take the stand, including a procession of teachers, relatives, acquaintances and crime victims.

The test is laid out in Virginia law: Atkins will need to show low intellectual functioning -- with IQ scores, for example, generally at 70 or below -- and deficits in conceptual, social and practical life skills, all before age 18.

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.

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