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

Atkins's attorneys, who said they will appeal the ruling, said their client's disability does not excuse his crimes. But they said a death sentence is not fair punishment for a man they say reads at a fifth-grade level, can't cook basic meals, struggled to play Monopoly and was called a "retard" by his grade-school classmates.

"It's a tragedy," said Richard Burr, one of Atkins's attorneys. "The question was whether he had mental retardation. We established he did. The people in this community rejected it, and we don't know why."

Relatives testified that Atkins, who flunked second grade, had developmental problems as an infant and took longer than other children to sit up on his own and talk. As a 14-year-old, he played Power Rangers with his young nephews, joining them as an equal, one aunt testified.

But Lorraine Batchelor, who taught Atkins at an alternative school, said she saw a teenager who struggled because he came late to class and didn't try to complete his work. Batchelor testified that Atkins blamed drugs for his disinterest and that there was "no indication whatsoever that he was incapable."

Thomas G. Walker, a constitutional law professor at Emory University who has written about the Atkins case, said the trial underscores the difficulties of such cases. Jurors faced contradictory expert-witness testimony and sifted through how Atkins carried out the simplest of tasks. Jurors were left to decide whether a defendant's actions are motivated by aptitude, attitude or circumstance.

"The challenge is to extrapolate from these kinds of activities and try to determine whether the standards of mental retardation have been met," said Walker, who was in the courtroom for several days of testimony.

For example, jurors learned that Atkins, when interrupted during a meal at prison, placed his soup bowl in a sink containing some hot water to keep it warm. Prosecutors portrayed it as a clever solution for a man with no access to a kitchen. But a defense expert countered that Atkins didn't seem to understand that the water soon would cool and that his fix was only temporary.

In August 1996, according to court records, Atkins and a friend, William A. Jones, were out after a day of drinking when they spotted Nesbitt, an Air Force mechanic from Upstate New York stationed at Langley Air Force Base, outside a 7-Eleven in Hampton. The pair abducted Nesbitt at gunpoint, forced him to withdraw $200 from a bank machine and drove him to a field, where he was shot eight times.

Both men claimed the other was the shooter. In a deal with prosecutors, Jones was given a life sentence in return for testifying against Atkins.

Although the jury learned nothing about Nesbitt's slaying, future juries will not work in a similar void. Under Virginia law, defendants claiming mental retardation would go to trial, and, if convicted, the same jury would decide whether the defendants' claims were true.

Defendants in Virginia must prove mental retardation by a preponderance of the evidence, a less-rigorous standard than that used to determine guilt.