Thursday, June 4, 2009


In 1998, in Virginia, Daryl Atkins was convicted of killing Eric Nesbitt and sentenced to death.

The Virginia Supreme Court ruled on his appeal, reversed the death sentence and sent him back for a new hearing and sentencing. Again he was sentenced to be executed. This time it was the U.S. Supreme Court that reversed the death sentence. It's unconstitutional to execute people with mental retardation, the Court said in Atkins v. Virginia, and sent his case back to the Virginia Supreme Court which remanded it for a jury trial on whether Atkins had retardation or should be sentenced to death.

The jury said he did not have retardation and sentenced Atkins to death. Back he went to the Virginia Supreme Court which, because the Commonwealth's expert wasn't competent to testify about retardation, and because the trial judge improperly told the jury that Atkins had previously been sentenced to death, reversed the death sentence and remanded for a new hearing.

But now there was new evidence. It turns out that in 1998, preparing for the trial, the prosecutor was not happy with the testimony Atkins' co-defendant was going to give. So she turned off the tape recorder and spent 16 minutes explaining to him how he would have to change his story to make Atkins eligible under Virginia law for death. After coaching the witness, the prosecutor then put on the perjured testimony. And hid the exclupatory evidence.

In light of the prosecutor's knowing use of perjury and hiding of exculpatory evidence, Atkins asked the trial judge to impose a life sentence and to exclude the prosecutor from any further involvement in the case. After two days of testimony, the judge imposed the life sentence. The Commonwealth asked the Virginia Supreme Court to undo that. Today, the Virginia Supreme Court refused.

So it's been eleven years. Three death sentences. And now life.

They still haven't determined whether Atkins is, under Virginia Law, a person with mental retardation. Right now, I don't think anyone much cares.

So I'm lifting my virtual glass in a toast to great and diligent lawyering, to a court that was offended by a dishonest prosecutor, and to the Supreme Court of Virginia for saying enough is enough. And to Daryl Atkins. And to life.

1 comment:

  1. it will be interesting to see how Ohio handles the Bies case...