Update: Killer's Retardation Case Reprised

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Update: Killer's Retardation Case Reprised

Newspaper article

By: Anonymous

Date: October 9, 2005

Source: Update: Killer's Retardation Case Reprised." Washington Post (October 9, 2005): C02. Available at: 〈http://www.washingtonpost.com/wpdyn/content/article/2005/〉 (accessed January 14, 2006).

About the Author: The Washington Post is a leading frontline media conglomerate in the United States. Launched in December 1877 as a four-page publication on rag paper, it will complete 130 years of eventful and successful existence in 2007. Its operations currently include print, cable, interactive and educational media, broadcasting, and magazine publications.


According to news reports, on August 16, 1996, two friends—Daryl Atkins and William Jones—spent a day of drinking and smoking marijuana. Later that night, Atkins borrowed a friend's gun and went to a 7-11 convenience store in Hampton, Virginia, to buy beer. However, discovering that he was broke, Atkins began panhandling people for money. A little while later, Eric Nesbitt, a twenty-one-year-old Air Force mechanic stationed at Langley Air Force Base, Hampton, Virginia, also came to the store. As Nesbitt was leaving the store, Atkins and Jones forced themselves into Nesbitt's truck at gunpoint and hijacked it. They also stole sixty dollars from his wallet and later forced him to withdraw two hundred dollars from a drive-through ATM. Reportedly, they drove Nesbitt to a secluded spot a few miles away in York County where Atkins shot Nesbitt eight times and killed him. Atkins also sustained two bullet injuries in the foot.

After their arrest in the same year, Jones and Atkins were both indicted for capital murder under Virginia law. But in a deal with the prosecution a year later, Jones pleaded guilty to first degree murder and testified against Atkins who pleaded not guilty. During this trial, the jury was presented with a record of Atkins's previous felonies, as well as a history of Atkins's academic performance that displayed a string of academic failures and extremely poor performance during school.

At this point, the defense called Dr. Evan Nelson, a forensic psychologist, as a witness. Dr. Nelson had previously administered a standard psychometric test (Wechsler Adult Intelligence Scale or WAIS III) to Atkins to measure his IQ. As Dr. Nelson testified, this test measured Atkins's IQ at fifty-nine, a score that classified him as mildly retarded.

Eventually, the jury sentenced Jones to life in prison, but sentenced Atkins to death because Virginia law specifies that the person who pulled the trigger is eligible for the death penalty. The Virginia Supreme Court upheld this decision, but the death sentence was reversed because of a procedural error and a second sentencing hearing was ordered.

During this hearing in 1999, Dr. Nelson testified again. However, the state of Virginia called another psychologist, Dr. Stanton Samenow, as a witness and Dr. Samenow rebutted Dr. Nelson's findings. Based on a series of tests called the Wechsler tests, as well as on further investigation of Atkins's general knowledge, understanding, and awareness of current events, Dr. Samenow concluded that Atkins had at least average intelligence and understanding. At this hearing, Atkins was again sentenced to death, and this sentence was again affirmed by the Virginia Supreme Court.

In 2002, the U.S. Supreme Court was prompted to issue a writ of certiorari (a decision to hear an appeal from a lower court) to the Supreme Court of Virginia to examine the case. Eventually, the U. S. Supreme Court decided that sentencing retarded individuals to death was unconstitutional and unallowable. This finding is considered by many to be a landmark ruling.

The U.S. Supreme Court only ruled that retarded individuals could not be sentenced to death. It, however, did not comment on whether Atkins was mentally retarded or not. As a result, in August 2005, the York County court deemed Atkins was not mentally retarded and set his execution date for December 2005. The defense counsel for Atkins filed an appeal in September 2005 against this decision. As of 2006, the execution is stayed as the case is slated to come up for appellate hearing again.

The primary source is a news story that appeared in the October 9, 2005, issue of the Washington Post. The article reported that Atkins's attorneys filed an appeal in the Virginia State Supreme Court against the ruling of the York County court that declared Atkins was not mentally retarded.


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


The death penalty is the subject of a raging debate in the United States. After a sustained campaign to eradicate its use, the U.S. Supreme Court banned it in 1972. But the death penalty was reinstated in 1976 after a brief prohibition of only four years. As of April 2005, thirty-eight states in the United States authorize the death penalty. Twelve states have completely abolished it. Seven states allow the death penalty, but have not executed any felon since 1976. Texas has executed the largest number of prisoners in the United States since 1976, while California has the largest number of prisoners on death row.

According to a Human Rights Watch Report, the United States is one of only a few constitutional democracies in the world that allows the death penalty. In December 2005, it joined China, Vietnam, and Iran as the country with the highest number of executions carried out since 1994.

Since the late 1990s, some reports suggest that the trend in the United States is moving toward abolishing capital punishment. The Atkins case is regarded by many as a landmark case in the ongoing death penalty debate. In 2002, as mentioned earlier, the U.S. Supreme Court abolished the death penalty for mentally handicapped individuals when it heard this case on appeal. However, it is important to note that the U.S. Supreme Court did not define mental retardation when it issued its judgment (or, in other words, determine whether Atkins should be considered mentally retarded or not). Instead, the court left it for the individual states to establish a definition of mental retardation independently.

Since the 2002 U.S. Supreme Court ruling that declared the death penalty for mentally retarded individuals was unconstitutional, several cases have been prosecuted in which the accused was deemed mentally handicapped and, therefore, not eligible for the death penalty. In most of these cases, the landmark 2002 U.S. Supreme Court ruling was cited. However, many feel that it is extremely difficult to come to a decision regarding whether or not a defendant is mentally retarded. Finally, it should be noted that Daryl Atkins has not benefited from the 2002 U.S. Supreme Court ruling, since he was judged mentally fit by the York County court.



Glod, Maria. "Va. Killer Isn't Retarded, Jury Says; Execution Set." Washington Post (August 6, 2005): A01.

Web sites

Amnesty International. "The Death Penalty." 〈http://web.amnesty.org/pages/deathpenalty-index-eng〉 (accessed January 14, 2006).

CNN. "Supreme Court Bars Executing Mentally Retarded." 〈http://archives.cnn.com/2002/LAW/06/20/scotus.executions/〉 (accessed January 14, 2006).

Human Rights Watch. "U.S.: 1,000th Execution Scheduled for Friday." 〈http://hrw.org/english/docs/2005/11/30/usdom12117_txt.htm〉 (accessed January 14, 2006).

The International Justice Project. "Daryl Renard Atkins." 〈http://www.internationaljusticeproject.org/retardationDatkins.cfm〉 (accessed January 14, 2006).

Legal Information Institute, Cornell University. "Atkins v. Virginia." 〈http://supct.law.cornell.edu/supct/html/00-8452.ZS.html〉 (accessed January 14, 2006).

Pro-death Penalty.com. "Who Speaks for the Victims of Those We Execute?" 〈http://www.prodeathpenalty.com/〉 (accessed January 14, 2006).