Attorney Struggled Over Case For Years

By Donna St. George
Washington Post Staff Writer
Monday, January 21, 2008

YORKTOWN, Va. -- Lawyer Leslie P. Smith brooded over what he knew for a decade: information that might spare the life of an inmate on Virginia's death row. He had thought about disclosing it long ago. But back in 1998, he had been told not to jeopardize the interests of his own client.

The case he could not forget was that of Daryl Atkins, who was convicted in a carjacking murder in York County, Va., and whose appeals spurred the U.S. Supreme Court to a landmark ruling that banned executions of mentally retarded inmates. Ironically, Atkins remained on death row in spite of the historic decision, his own mental limitations still under debate.

All the while, there was Smith, a solo practitioner in Hampton, sometimes pondering his vow of silence. He had been the attorney for Atkins's co-defendant. And what he felt he knew was this: His own client had been coached in his testimony to help ensure that Atkins got the death penalty.

Last spring, Smith, 64, unexpectedly decided to raise the issue again, writing a letter to the Virginia Bar. This time, he was urged to tell what he knew, he testified in court. And the outcome of that revelation came Thursday evening: Atkins's sentence was commuted to life in prison, bringing apparent finality to a case that has bounced from court to court for a decade.

In the end, it seemed one man's disclosure had changed everything. Many lauded Smith for coming forward, although others asked why he waited so long.

"The court finds that Leslie Smith's evidence was indeed credible," Circuit Court Judge Prentis Smiley Jr. said Thursday as the low-key Hampton lawyer watched quietly in the courtroom. The judge noted that Smith had "absolutely nothing to gain."

Atkins's own counsel told the court, "He comes forward at great personal cost to himself."

To some, Smith might seem an unlikely man for the spotlight.

After the ruling was handed down, he left the courthouse without comment. A day later, he was working in his office in Hampton, even though it was a state holiday. Not a showman, not a tough talker, Smith has practiced law 37 years -- half real estate, half criminal work. Other lawyers describe him as honest, forthright.

"He's just a pleasant, down-to-earth, plain-spoken kind of guy," said Ron Smith, a Hampton lawyer who has known him 20 years. "What he did was extraordinary, and he wrestled with it a long time."

"Somebody's sitting on death row, and you know there's evidence . . . they don't know about," said Ron Smith, who is no relation to Leslie Smith. "That's an awful situation for a lawyer to be in."

Over his long career, Leslie Smith has handled five or six capital cases, including the one involving Atkins's co-defendant.

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.

"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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