- The Washington Times - Friday, June 5, 2009

RICHMOND | A Virginia death-row inmate whose case led to the national ban on executing the mentally retarded will spend life in prison because prosecutors withheld evidence in his 1998 trial, the Virginia Supreme Court ruled Thursday.

In a 5-2 decision, the justices upheld York County Circuit Judge Prentis Smiley Jr.’s order commuting Daryl Atkins’ sentence to life without parole.

Atkins spent a decade on death row for the 1996 robbery and slaying of Eric Nesbitt, 21, an Air Force mechanic. Mr. Nesbitt was abducted outside a convenience store, forced to withdraw money from an ATM and driven to a desolate road, where he was shot eight times. A co-defendant, who is serving a life sentence, testified that Atkins was the triggerman.

Defense attorneys argued that Atkins shouldn’t be executed because he is mentally retarded. The case went to the U.S. Supreme Court, which ruled in 2002 that executing the mentally retarded is unconstitutional.

A new jury later decided Atkins wasn’t retarded and reimposed the death sentence, but the state Supreme Court ordered another hearing on whether Atkins was retarded. New evidence that Atkins may not have been the triggerman - which was not shared with the defense - became known at that hearing, prompting Judge Smiley to commute the death sentence.

Prosecutors had said the judge overstepped his authority because he was authorized only to conduct the hearing on Atkins’ mental health.

The state Supreme Court’s majority disagreed, though Justice Cynthia Kinser wrote in a dissent that the judge “had no discretion to disregard our mandates” and should be ordered to conduct the mental retardation hearing.

Atkins’ attorney, John A. Gibney, said the decision was necessary to prevent a miscarriage of justice after the new evidence surfaced.

“As long as the case is pending before the court deciding it, it has authority to correct any injustices that pop up in the proceeding,” he said.

Mark A. Krueger, one of the prosecutors, said he had not read the opinion and could not comment.

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