Death Sentence Commuted In Va. Case
Prosecutor Action Is Issue, Not Mental Status of Defendant

By Donna St. George
Washington Post Staff Writer
Friday, January 18, 2008

YORKTOWN, Va., Jan. 17 -- More than five years after his case made legal history with a U.S. Supreme Court ban on executions of the mentally retarded, Daryl Atkins was spared his own long-held place on Virginia's death row when a judge commuted his sentence to life in prison Thursday.

The reprieve came for reasons that few would have guessed during the ever twisting, nearly 12-year course of the case, which had focused largely on Atkins's mental limitations. Instead, it came because of a Hampton lawyer's allegation of evidence suppression by prosecutors as they prepared for Atkins's murder trial in 1998.

"The court finds that had he [Atkins's attorney] been given the evidence, the outcome might have been different," Judge Prentis Smiley Jr. of York County-Poquoson Circuit Court said after ruling that prosecutors had committed a violation by not fully disclosing the evidence.

The turn of events came in Southeastern Virginia, where Atkins, 30, faced charges in the slaying of Eric Nesbitt, 21, an Air Force mechanic who was shot in York County in August 1996 after being carjacked and robbed.

Atkins and his codefendant, William Jones, ultimately admitted to taking part in the crime, but each man claimed the other did the shooting. In Virginia, only the person who pulls the trigger is eligible for the death penalty.

Jones's testimony against Atkins was a central part of the case against him, and it was Jones's first and only interview with prosecutors and police that came under question in Thursday's proceedings. At that two-hour interview in 1997, Atkins's lawyers alleged, prosecutors coaxed and coached Jones when his statement was not in line with forensic evidence in the case.

The interview was tape recorded, and an expert in audio analysis testified that 16 minutes could not be accounted for.

"We're relieved," said Joseph Migliozzi, Atkins's lead attorney and capital defender for the Southeastern District of Virginia. "We believe the judge took this very seriously, and we feel that he arrived at the fair and appropriate decision."

Atkins, who often stares blankly during court hearings, raised a fist in momentary celebration as he was ushered out of the courtroom.

The decision was made by the same judge who handled Atkins's case when it first came to trial, in the same community, with some of the same lawyers on hand. It was a defeat for Commonwealth's Attorney Eileen M. Addison, who had vigorously denied the contentions of Atkins's legal team.

Addison and former prosecutor Cathy Krinick left the courthouse quietly, declining to comment.

The Atkins case had been taken up by the U.S. Supreme Court in 2002, when it issued a landmark ruling that prohibited the death penalty for mentally retarded inmates.

For Atkins himself, however, the high court decision was not enough. The Supreme Court left unsettled the question of whether Atkins was mentally retarded.

Since then, Virginia has tried to determine what the standard for mental retardation is, and whether Atkins meets it.

In 2005, York County became one of the first jurisdictions to hold an extended trial on the question of whether a death-row prisoner met the test for mental retardation, which in Virginia includes both a low IQ score and "significant limitations in adaptive behavior" before age 18.

In that trial, a jury decided that Atkins did not qualify as mentally retarded under legal criteria -- and thus faced execution again.

But in 2006, the case was overturned again, when the Virginia Supreme Court ruled that the jurors deciding the mental retardation issue should not have been told that another jury had put Atkins on death row.

As Atkins's attorneys were preparing for another hearing on the question of mental retardation, they were told, by a lawyer for Atkins's codefendant, that he had been bothered for years by prosecutors' interview of his client.

Lawyer Leslie P. Smith testified that the tape recorder was turned off at a point during the interview when Jones's statements were inconsistent with forensic evidence.

Prosecutors let Smith know of the inconsistency and said it was a problem, he testified.

In announcing his decision, Smiley said he would not consider ordering a new trial, which he said would be "a waste of everybody's time" because innocence was not an issue. But he said he felt the reduction of punishment was necessary.

"The court finds there was favorable, potential impeachable evidence possessed by the commonwealth," he said.

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