- The Washington Times - Sunday, April 16, 2006

RICHMOND — A Virginia man whose case led to the U.S. Supreme Court’s ban on executing the mentally retarded now must convince a state court he has that disability and should not be put to death for killing an Air Force enlisted man for beer money.

A York County jury ruled in August that Daryl Renard Atkins, 28, failed to prove he was mentally retarded. The Virginia Supreme Court will hear Atkins’ appeal Thursday.

In briefs filed with the state’s highest court, attorneys for the state and for Atkins offer starkly different versions of his childhood and adolescence, his intelligence and his ability to cope with daily life.

Atkins’ attorneys recall witnesses — former teachers, relatives and childhood friends in Hampton — who testified that he was slow in school. As a teenager, Atkins still needed help selecting his clothes. His stepsister said he could not prepare meals nor “clean out his own ears.” He was a follower, did not have girlfriends and could not drive, witnesses said.

Attorneys for the state portray Atkins as a pot-smoking, cocaine-snorting slacker whose lousy grades in school stemmed from a bad attitude, not the “significantly sub-average intellectual functioning” that qualifies as mental retardation under state law.

“No one in Atkins’ life believed he was mentally retarded until he was facing a death sentence,” the attorney general’s office wrote in its brief, repeating a prosecutor’s argument to jurors.

Atkins’ attorneys argue that the statement was prejudicial.

The state also cites evidence that school officials declined to screen Atkins for special-education services. Atkins did better in the ninth grade at an alternative school for troubled youths but fell back in with the wrong crowd and started cutting class and smoking marijuana after returning to his regular high school the next year, the state said.

The attorney general also uses Atkins’ own words against him.

“Atkins said he did not care about school and just wanted to get high with his friends,” the state says in its brief.

Atkins also bragged to the state’s mental health specialists that he had made a lot of money operating a grass-cutting business and selling drugs, that he had written rap songs and that he had dated many girls.

Atkins’ attorney countered that the boasts should not be taken seriously.

“Mentally retarded people ‘mask’ their symptoms and put on a cloak of competence,” Atkins’ attorney, Joseph A. Migliozzi Jr., wrote in his brief.

A mental health specialist hired by the defense probed deeper into Atkins’ statements, Mr. Migliozzi said. When Atkins claimed he could cook, the specialist asked what oven temperature he used and was told “100 or 125.”

After Atkins’ case led to the landmark U.S. Supreme Court ruling that executing the mentally retarded violates the Constitution’s ban on cruel and unusual punishment, the General Assembly passed a law in 2003 defining mental retardation. A legislative committee that played a key role in writing the law was chaired by Robert F. McDonnell, now state attorney general.

In Virginia, mental retardation is defined as an IQ of 70 or lower by the age of 18 and an inability to function well in society. Atkins scored between 59 and 76 on four IQ tests administered after he was charged with the 1996 slaying of Eric Nesbitt.

Mr. Migliozzi also argues in his brief that Atkins’ trial was tainted by procedural errors, including the judge’s decision to inform the jury about Atkins’ criminal record and death sentence.

The state said jurors had a right to know why they were being asked to decide whether Atkins was mentally retarded.

Mr. McDonnell declined further comment on the case.

Atkins was 18 when he and William A. Jones abducted Mr. Nesbitt outside a Hampton convenience store, forced him to withdraw cash from an automated teller machine, then drove him to a remote road in York County where he was shot eight times.

Prosecutors said Atkins was the triggerman. Jones, who pleaded guilty and received a life sentence, testified against him.

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