Man's Va. Death Sentence Overturned

By Donna St. George
Washington Post staff writer
Friday, June 9, 2006

The Virginia Supreme Court yesterday threw out the death sentence of a man whose case had led to a federal ban on executions of the mentally retarded, in a decision that was widely seen as creating new areas of death-penalty law.

In its 24-page opinion, the court ruled that a jury should not have been told that Daryl Atkins had been handed a death sentence by an earlier panel of jurors. The disclosure, the court wrote, "prejudiced his right to a fair trial on the issue of his mental retardation."

The court ordered a new trial on the single question of whether Atkins, 28, is mentally retarded. His IQ has been measured at various times as 59, 67, 74 and 76. Atkins was convicted eight years ago in the carjacking and murder of Eric Nesbitt, 21, an Air Force mechanic.

The new proceeding would mark the fourth time that a jury has weighed Atkins's fate.

He first went to trial in 1998, was later ordered back for a new sentencing and then made legal history in 2002, when the U.S. Supreme Court cited Atkins's low IQ scores in an opinion that abolished executions of mentally retarded inmates nationally.

The U.S. Supreme Court did not rule specifically on whether Atkins was mentally retarded, however, leaving that issue to be sorted out by the Virginia courts.

Last summer, the nationally watched case returned to a courtroom in York County. After seven days of testimony and 13 hours of deliberation, there was another verdict: Atkins did not meet Virginia's test for mental retardation. He was sent again to death row.

In yesterday's opinion, the state Supreme Court said that by telling jurors about Atkins's death sentence, the trial judge essentially informed them that they would be "nullifying another jury's verdict" if they found him mentally retarded.

The state Supreme Court also wrote that the trial judge made a mistake in allowing the expert testimony of forensic psychologist Stanton Samenow.

Virginia law says that, among other things, experts on mental retardation must be skilled in the use of standardized tests of adaptive behavior. Samenow said at trial that he regularly assesses adaptive behavior but had never given such a test.

This issue was notable, the court said, because the trial was "the classic battle of the experts," with the jury deciding which experts "were worthy of belief."

Atkins's attorneys said yesterday they were heartened by the court's decision. "I'm confident that we proved last year that Daryl Atkins was mentally retarded," said Joseph Migliozzi, his lead counsel, who said he planned to visit Atkins to explain the ruling in person.

Migliozzi said he felt the court recognized how much care is needed in cases in which the jury is considering mental retardation after an inmate is condemned to death. "I think it was a trial run," he said. " Atkins was the first to test the law."

He added, "Everyone was trying to tiptoe around this trial and decide how to fairly put on evidence about mental retardation, and as a result there was a lot of error, which ultimately prejudiced Daryl Atkins, and the court found that it did."

Eileen Addison, the commonwealth's attorney in York County, said she expects the decision to lead to another trial. "We will do it again," she said. "I don't believe Daryl Atkins is mentally retarded under any stretch of the imagination." Of his death sentence, she added: "Three juries have thought this is what he deserved."

Addison has the option of asking the court to commute Atkins's sentence to life in prison, which she said she would consider if it were requested by the victim's family. There is no indication of that, she said.

The court's reversal, she said, was in an area of law without precedents. "We were floundering with no rules and no guidance about procedures and what to tell the jury," she said.

J. Tucker Martin, a spokesman for the Virginia attorney general's office, which argued the case before the state Supreme Court in April, said "the court's ruling was based on evidentiary grounds and not on the ultimate question of whether Atkins is mentally retarded. A York County jury will now make that decision."

Scott Sundby, a professor at Washington and Lee University School of Law, agreed that, in new areas of law, "there tends to be a learning curve and you tend to get more reversals in the beginning." But other factors may be at issue, too, he said. "This in part may reflect that the U.S. Supreme Court has in the last four to five years become more aggressive in reversing death sentences," he said. "It may be a trickle-down effect."

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