Inclusion Daily Express -- New Twist In Famous Death Penalty Case

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New Twist In Famous Death Penalty Case
By Dave Reynolds, Inclusion Daily Express
June 14, 2007

RICHMOND, VIRGINIA--There was a new development this week in the case of a man whose death penalty appeal went all the way to the U.S. Supreme Court.

In a preliminary hearing on Tuesday, defense attorneys for Daryl Atkins accused the prosecutor in Atkins' 1998 murder trial of withholding evidence that might have cleared their client.

Atkins was convicted of robbing and murdering Airman 1st Class Eric Nesbitt in 1996. Co-defendant William A. Jones testified that Atkins, who was 18 at the time, shot Nesbitt eight times after the pair robbed him. Jones' life was spared in exchange for his testimony against Atkins, who was sentenced to be executed for the crime.

After Atkins' conviction, the question of whether he committed the crime has not been questioned in court. But the question of whether his intellectual disability should prevent him from being executed went all the way to the U.S. Supreme Court. The high court determined in June 2002 that executing convicts that have mental retardation is "cruel and unusual punishment" in violation of the Eighth Amendment to the Constitution.

The high court did not decide whether Atkins had mental retardation, nor did it tell Virginia -- or any state -- how to determine if a convict does have the intellectual disability. Atkins' case was returned to the Virginia Supreme Court, which ordered a new jury trial specifically to determine whether he has mental retardation and therefore can be executed.

Under Virginia's law, mental retardation is defined as an IQ of 70 or lower, measured before age 18, along with low functional ability. During the trial in 2005, Atkins' attorneys presented evidence that he scored 59, 74, 67 and 76 on IQ tests -- all of which were taken after age 18. They also presented testimonies from teachers, coaches, and others, stating that in school he had difficulty with such things as telling the difference between left and right, and that he once handed in an assignment that he had copied word-for-word from a fellow student's work, including that student's name.

In August of 2005, a jury declared that Atkins does not have mental retardation and qualifies for the death penalty. But that ruling was thrown out last year, when a judge determined that the jurors were unfairly biased because they had been told Atkins was convicted of murder.

Atkins is scheduled to face a jury this August to determine whether he has mental retardation.

According to the York Daily Press, defense attorneys Joseph Migliozzi and Richard Parker alleged in Tuesday's motions hearing that Eileen Addison, the York-Poquoson Commonwealth's Attorney, withheld information from an interview with Atkins' co-defendant Mr. Jones.

Judge Prentis Smiley said asked both sides to submit briefs to argue whether the court has jurisdiction to rule on the motion of misconduct, and whether Addison should continue as prosecutor.

Another pre-trial hearing is set for June 21.

The allegation is not unique in cases where people with intellectual disabilities have been charged with capital crimes.

In 2003, Florida's Jerry Frank Townsend, who spent 22 years in prison for six rapes and murders he did not commit, sued the city of Miami and two police officers whose testimony helped put him behind bars. Townsend said Broward County Sheriff's investigators took advantage of him by forcing him to confess to the crimes, "helping" him remember several details -- even turning off the tape recorder to "correct" him when his story was not consistent with theirs. DNA tests cleared Townsend and pointed to another inmate.

Another Floridian, Tim Brown, was released from prison in 2003 after spending nearly 12 years in prison for murdering a Florida sheriff's deputy. Brown, who reportedly had mental retardation, was freed when his confession to the crime was thrown out after a former jail deputy admitted in February 2002 to killing the deputy.

And the Commonwealth of Virginia agreed in March of this year to pay $1.9 million to Earl Washington, Jr after a jury found that a state police investigator fabricated evidence that led Washington to confess to a rape and murder that he did not commit. Washington, who spent nearly 18 years in prison for the crimes, came within 9 days of execution in 1985.

Related:
"Lawyers point fingers over 1998 murder case" (York Daily Press)
http://www.inclusiondaily.com/news/07/red/0614a.htm
"IQ debate unsettled in death penalty cases" (Los Angeles Times)
http://www.inclusiondaily.com/news/07/red/0614b.htm
"Daryl Atkins v. Virginia" (Inclusion Daily Express Archives)
http://www.inclusiondaily.com/news/laws/atkins.htm

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