- The Washington Times - Friday, June 9, 2006

Skeptics of Virginia Gov. Timothy M. Kaine’s vow to uphold death sentences despite his opposition to the death penalty resurfaced this week after the Democrat postponed the execution of a convicted triple killer Percy Levar Walton.

“It’s pretty predictable to me,” said former Attorney General Jerry W. Kilgore, who lost to Mr. Kaine in last year’s election. “I’ve said all along that he would be a governor who would not enforce the death penalty.”

The freshman governor and devout Catholic silenced a lot of critics in April when he denied the first clemency request he received since taking office, saying there were “no compelling reasons” to stop the execution of convicted murderer Dexter Lee Vinson.

But the criticism resurfaced on Thursday. After the U.S. Supreme Court denied Walton’s final appeal, and about an hour before the scheduled execution, Mr. Kaine used his executive powers to delay the execution for six months on the grounds that it is unconstitutional to execute Walton, 27, if he is “a mentally incompetent person.”

“You really do wonder if this is setting a precedent for how he is going to be looking at future cases,” said Lt. Gov. Bill Bolling, a Republican. “Is he always going to be looking for a reason to not carry out the determination of the court. … This debate is renewed.”

Kevin Hall, the governor’s spokesman, said, “it is offensive that there are some who would be so disrespectful of the issues involved in clemency that they would attempt to reduce it to a simplistic political context.”

Those who are mentally retarded are generally defined as having an IQ of 70 or lower. Lawyers for Walton say he has an IQ of 66.

“Walton’s clemency petition presents significant information suggesting schizophrenia … and that there is more than a minimal chance that Walton no longer knows why he is to be executed or is even aware of the punishment he is about to receive,” Mr. Kaine said, adding that the last time Walton’s mental condition was evaluated was 2003.

The governor plans to work with Republican Attorney General Robert F. McDonnell on an independent evaluation of Walton, which is expected to determine whether he should be executed..

Mr. Bolling disagreed with Mr. Kaine’s decision, saying, “Walton’s lawyers have argued for years that he was mentally incompetent, but this argument has been rejected by the courts. The courts have found that Walton can and should be executed because he clearly knew what he was doing when he committed these crimes.”

Walton was sentenced to death in 1997 for killing Elizabeth Hendrick, 81, Jesse Hendrick, 80, and Archie Moore, 33, in their Danville homes. All three victims were shot in the head, according to court records.

Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty, applauded Mr. Kaine’s decision and emphasized the differences between the clemency requests of Vinson and Walton.

“In the Vinson case … there certainly weren’t the issues of chronic schizophrenia and there weren’t questions of mental retardation.”

Mr. Kilgore said, “We’re started down a slippery slope. … Death penalty inmates are pretty smart. They’ll figure out what it takes to get out of it. If mental retardation will get them out of it, they’ll claim mental retardation.”

On Thursday, the Virginia Supreme Court sent the case of death-row inmate Daryl Renard Atkins back to York County to determine whether the convicted killer is mentally retarded.

Atkins’ appeal of his 1998 death sentence resulted in the landmark U.S. Supreme Court ban in 2002 on executing the mentally retarded. Atkins, who has an IQ of 59, was 18 at the time of his 1996 abduction, robbery and murder of Langley Air Force Base Airman Eric Michael Nesbitt.

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