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Attorney Struggled Over Case For Years

"Earlier this year, I wanted to get an answer for myself if we rephrased the question, because I wasn't 100 percent sure that the right question got presented to the bar. But I think the answer was correct in '97, '98. . . . The circumstances have changed."

Several lawyers were impressed that Smith came forward. "I think there's a great deal of respect and admiration for him," said David Lee of Williamsburg. "He could have kept his mouth shut. He didn't have to put himself on the stand to be cross-examined."

The victim's family, however, expressed disappointment that Atkins would be spared a death sentence. "We want to see him executed," Dan Sloan, Nesbitt's stepfather, said. "Be nice to see a little justice."

Others were troubled that Atkins has spent a decade on death row and wondered why Smith had not stepped up after Jones's sentence was made final back in 1998.

Carmen Taylor, president of the Hampton branch of the NAACP, said: "How can you sleep at night for 10 years? It takes 10 years for your conscience to kick in?"

She added: "This is just one case. How many other cases are like this?"

These kinds of issues are not uncommon during the deal-making process with prosecutors, said Corinne Magee, a former prosecutor who is now a board member of the Virginia Association of Criminal Defense Lawyers and traveled several hours to watch the proceeding. "Absolutely, it goes on a lot -- trying to make sure the testimony of the witness is going to jibe with the other evidence in your case," she said.

In Virginia, state law adds to the problem, Magee said. "We have such limited discovery in Virginia as defense counsel that these kinds of issues are continuously emerging," she said. Her group, she said, has pushed to make Virginia's laws more consistent with the laws in other states.


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