Attorney Struggled Over Case For Years

Atkins and William A. Jones were charged with killing Airman 1st Class Eric Nesbitt, a 21-year-old Air Force mechanic. Their photos were taken by a surveillance camera as they forced Nesbitt to withdraw cash from a bank machine. They both ultimately admitted their roles, but each said the other did the shooting. In Virginia, only the triggerman can be given the death penalty.

The episode that Leslie Smith found so troubling -- and kept a secret -- goes back to the first interview prosecutors had with his client, Jones, on Aug. 6, 1997. Prosecutors wanted to use Jones's statement to convict Atkins and ask for a death sentence. They offered to drop several charges against Jones if he proved to be a credible witness.

But, according to court testimony, the interview went awry. Jones's statements about what happened were at odds with the forensic evidence in the case. At one point in the interview, someone turned the tape recorder off, Leslie Smith testified in December.

"Les, do you see we've got a problem here?" he recalled a prosecutor asking him. "This isn't going to do us any good."

Smith told the prosecutor his client sometimes confused his right with his left. The group created a mock crime scene so Jones could show prosecutors what happened. Smith testified that law enforcement officials then coaxed his client to give answers that would fit the facts.

The tape recorder was turned back on. An audio expert testified that about 16 minutes of tape could not be accounted for.

Smith said he called Timothy Clancy, the lead attorney in the Jones case, soon after the interview to discuss how to proceed. He wrote a memo about the events. Clancy then asked a local judge for advice and ultimately called the Virginia Bar.

The bar's advice, he testified, was that an attorney's first obligation was to his client -- and he might harm Jones's interests by giving Atkins' attorneys exculpatory evidence.

Nearly 10 years later, Smith told the court that he believed the ethical problem was not what had happened but that it had not been divulged to the other side and could not be used at trial.

"I felt that the law is kind of like professional golf," he testified. "You have to trust everybody else to follow the rules, and you have to be willing to call penalties on yourself because we have to trust one another."

Smith -- a grandfather of five who grew up in the District but made his living in this waterfront city off Interstate 64 -- did not expound on all of this at his office last week. But in the courtroom, he testified that it always bothered him.

Asked what he did about his concerns, he said: "For nine, 10 years, nothing. I mean, Clancy and I, when we were alone together, would reminisce about this and more or less renew our vow of silence, that we felt there was nothing that could be done.