Man’s fate rests with jury’s decision on mental retardation |

Man’s fate rests with jury’s decision on mental retardation

YORKTOWN, Va. – Is Daryl Atkins mentally retarded? That question will be the sole focus of a trial set to begin this week, and the answer will determine whether he lives or dies.Atkins, 27, is the Virginia inmate whose case led the U.S. Supreme Court three years ago to bar execution of the mentally retarded as unconstitutionally cruel. Yet he has remained on death row for the 1996 robbery and murder of an Air Force enlisted man.While the high court’s ruling protected the severely mentally retarded, it provided little guidance for the far greater number of inmates, like Atkins, who are borderline cases.Preparations for Atkins’ case, set to begin Monday, have taken two years, producing eight volumes of paperwork and numerous procedural hearings. As many as 100 witnesses could be called during the trial, which is scheduled for two weeks.An IQ of 70 or less is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself.Atkins, who did not finish high school, scored 59 on an IQ test in 1998, but recorded 74 and 76 on more recent tests.However, Virginia law also requires that mental retardation be determined by the age of 18. That presents a challenge for the defense, which must prove Atkins is retarded, because his IQ was not tested as a youth.Wearing an orange prison jumpsuit, the small, balding man sat at the defense table during pretrial arguments, showing little interest.There’s no clear legal standard for determining mental retardation, said Paul Marcus, a law professor at the College of William & Mary.”Mental health professionals themselves don’t agree on it,” said Marcus, who has done research on criminal confessions by people with low IQs.The high court left it to states to determine which death row inmates are retarded, and states have disagreed over where to draw the line. Many set an IQ of 70 as the cutoff, while others have no set number and Arkansas set its standard as 65, according to the Death Penalty Information Center in Washington, D.C.Defense attorneys did not want the jury to be told that Atkins had been convicted of murder and sentenced to death. But Judge Prentis Smiley Jr. denied that request earlier this year and refused to reconsider it last week.He did say he would not dwell on Atkins’ crime.”You will not be sentencing this defendant. Another court has done that,” Smiley said he will tell the jury. “The single issue today is whether he’s mentally retarded.”Atkins and another man killed Airman 1st Class Eric Nesbitt, 21, in August 1996 for beer money. Nesbitt was abducted outside a convenience store, forced to withdraw money from an automated teller machine and driven to a desolate road, where he was shot eight times.Prosecutors said Atkins was the triggerman, and a plea agreement was reached with William Jones, who testified against Atkins. Jones is serving a life sentence.Following the Supreme Court ruling on Atkins, other states commuted the death sentences of inmates determined to be mentally retarded. Neighboring North Carolina has removed about 10 inmates from death row as a result of the ruling, according to Death Penalty Information Center Director Richard Dieter.Many defendants who are likely to be found to be mentally retarded now are not reaching death row in the first place, he said.”If it looks like it’s at least arguable, why go through the process?” Dieter said.Before the high court’s ruling, 18 states already had laws on the books exempting the mentally retarded from execution. Eight, including Virginia, have revised their laws to comply with the ruling.Only Virginia – and Louisiana, at the prosecutor’s discretion – make the determination after a conviction. The others require that it be decided before trial whether a defendant is mentally retarded.”I think in future cases, the determination may be done more by juries,” Dieter said.

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