Attorneys for Virginia death row inmate Daryl Renard Atkins have filed an appeal in his case, which made legal history in 2002 when the U.S. Supreme Court used it to outlaw executions of mentally retarded prisoners.

The high court did not determine whether Atkins met the definition for mental retardation, and this summer, a trial was held in York County on that question. In an unusual proceeding that drew national attention, more than 50 witnesses testified about Atkins's IQ scores, school records and childhood abilities. Prosecutors have long argued that Atkins is not mentally retarded and should be put to death for the 1996 carjacking and murder of Eric Nesbitt, 21, an Air Force mechanic.

After 13 hours of deliberation, jurors concluded that Atkins was not mentally retarded. Execution was set for Dec. 2.

The notice of appeal was filed in mid-September, Atkins's execution will be stayed and new legal briefs will be drafted, his attorneys said. Arguments before the state Supreme Court probably will occur next year.

Joseph Migliozzi Jr., lead counsel for Atkins, contended in an interview that the trial in York County was tainted when the judge gave jurors information about Atkins's previous conviction and told them Atkins had already been given a death sentence. Migliozzi also contended that Virginia's law on mental retardation is constitutionally flawed. The law, passed after the U.S. Supreme Court ruling, violates due process rights, he said, places the burden of proof on the defendant and fails to outline procedural issues, including whether to probe jurors for their opinions about the death penalty and what would happen in the case of a hung jury.

"I feel strongly that he was denied a fair trial," Migliozzi said.

Emily L. Lucier, spokeswoman for Virginia Attorney General Judith W. Jagdmann, said the state would not comment while the case is pending.

-- Donna St. George

Daryl Atkins, second from left, shown with attorneys Mark Oliver, left, Richard Burr and Joseph Migliozzi Jr., was deemed not retarded by a jury, making him eligible for the death sentence. An appeal has been filed.