Va. Killer Isn't Retarded, Jury Says; Execution Set

Joseph Migliozzi Jr., left, Mark Olive and Richard Burr, right, sit with Daryl Atkins in a courtroom in Yorktown. Atkins's execution was set for Dec. 2.
Joseph Migliozzi Jr., left, Mark Olive and Richard Burr, right, sit with Daryl Atkins in a courtroom in Yorktown. Atkins's execution was set for Dec. 2. (By Sangjib Min -- Associated Press)
By Maria Glod
Washington Post Staff Writer
Saturday, August 6, 2005

YORKTOWN, Va., Aug. 5 -- The convicted killer whose case prompted the U.S. Supreme Court to abolish the death penalty for the mentally retarded will not himself benefit, as a jury on Friday ruled he was not retarded.

After nearly 13 hours of deliberation, a York County Circuit Court jury concluded that Daryl Renard Atkins, 27, who was condemned to death for kidnapping, robbing and shooting a young airman in 1996, is not legally mentally retarded and is therefore eligible for execution.

The Supreme Court's June 2002 ruling in Atkins's case prompted courts in several states, including Mississippi, North Carolina and Nevada, to spare the lives of several mentally retarded murderers by commuting their sentences to life in prison. But the court did not decide Atkins's fate. Instead, justices left it to each state to define mental retardation -- and to a Virginia jury to decide whether Atkins fell within that definition.

"It's ironic, but as a legal matter, this was always a possibility," said Robert D. Dinerstein, an American University law professor.

The trial, the first of its kind in Virginia, illustrated the subtleties and complexities that jurors, judges and attorneys nationwide face as they carry out the Supreme Court ruling. The justices held that because of disabilities in reasoning and judgment, mentally retarded criminals should not be subject to the ultimate punishment. Such defendants have a diminished "moral culpability" and may have difficulty assisting in their own defense, the court said.

During seven days of testimony, jurors -- whose sole task was to determine whether Atkins is mentally retarded -- did not learn details about the slaying of Eric Nesbitt, 21, or even hear his name.

Instead, they heard from psychologists who administered a battery of IQ and other tests and examined Atkins's school and prison records. They also relied on the testimony of family, friends and teachers who were asked to recall the most mundane details of Atkins's daily life. Was he able to cook chicken? Drive a car? Mow the lawn? Dress himself appropriately? Write rap lyrics?

In Virginia, lawmakers have defined a mentally retarded offender as someone with an IQ below 70 who has "significant limitations in adaptive behavior" that were evident before age 18. Atkins has scored 59, 67, 74 and 76 on IQ tests, according to testimony.

When the verdict was announced, Atkins turned to his family, blew a kiss and made a peace sign. His mother, Elvira Bullock, sobbed. On the other side of the small courtroom, Mary Sloan, Nesbitt's mother, leaned back, visibly relieved that her son's killer will return to death row. Neither family would comment.

Circuit Court Judge Prentis Smiley Jr. immediately set a Dec. 2 execution date.

York County's top prosecutor, Eileen M. Addison, who twice convinced other juries that Atkins deserved the death penalty, said she had never doubted that Atkins knew right from wrong. Drug abuse, laziness and a bad attitude were to blame for Atkins's poor grades in school and problems in life, she indicated.

"We've never disagreed that he is probably a slow learner and he is not of high intelligence, but that is not the same as mentally retarded," Addison said. "I do agree with the Supreme Court's decision, but this was the wrong case."

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