July 27 VIRGINIA: His case changed execution laws; now mental ability is on trial Growing smarter is usually considered a good thing. Not for 27-year-old convicted murderer Daryl Renard Atkins. Years spent trying to get off death row may have made the Hampton man - whose brainpower once tested under today's definition of mentally retarded - intelligent enough to be executed. The irony is unfolding in a landmark trial that began Monday in Yorktown. Atkins IQ 59 at the time of his crime - changed laws across the land when the U.S. Supreme Court studied the case in 2002 and ruled against capital punishment of the mentally retarded. The court stopped short of naming an IQ threshold for the diagnosis, which sent states scrambling to come up with a definition of their own. Like many others, Virginia drew its line at an IQ of 70. The bad news for Atkins: Hes been scoring higher on recent intelligence tests - up to 76. One theory is that the time Atkins has spent working on appeals with his attorneys has sharpened his mind. Now, in a case described by its judge as "unique in the annals of judicial history," a jury will decide if Atkins is smart enough to be put to death." Prosecutors contend he always was. There's little debate that severely retarded criminals should be exempt from execution. Even in Colonial times, "idiots," as they were called then, were confined instead of killed. An "idiot" was someone who didn't know his own age, couldn't name his parents and was unable to tally 20 pence. "Imbeciles," however, were eligible. That label applied to someone noticeably less intelligent than most but smart enough to know right from wrong. Prosecutors maintain that Atkins knew right from wrong on Aug. 16, 1996. According to court transcripts, Atkins, then 18, and William Jones, 26, had spent most of the day drinking and smoking marijuana. Atkins, a jobless high school dropout, had been on a recent crime binge, racking up 16 felonies over a 4-month period. A bout midnight, the men ran out of beer money. Eric Michael Nesbitt, a 21-year-old airman from upstate New York, had spent his day working a morning shift at Langley Air Force Base in Hampton and attending a squadron picnic. Then he reported to his 2nd job at an Advance Auto in Newport News, where he locked up a bout 11:30 p.m. On his way back to the base, he stopped by a 7-Eleven for a Mountain Dew and a bag of chips. When he came out of the store and climbed back into his Nissan pickup, Atkins and Jones jumped in as well. Atkins and Jones took what money Nesbitt had - just less than $60 then had him withdraw $200 from a Crestar ATM near Hampton Coliseum. Atkins and Jones began debating about what they should do with Nesbitt, eventually deciding to tie him up and dump him. Atkins suggested a remote place in York County, near his grandfather's home. They pointed the Nissan west on Interstate 64. During the 15- to 20-minute drive, Nesbitt made nervous conversation with Jones while Atkins worked on prying the stereo out of the dashboard. They wound up on Crafford Road, a long, curvy, thickly wooded lane. Jones pulled over, leaving the headlights on. Atkins climbed out and ordered Nesbitt to do the same. Atkins opened fire the moment Nesbitt stepped from the truck, shooting him 8 times in the chest, arms and neck. In the midst of it, Jones, who later testified against Atkins to avoid the death penalty himself, said he heard Nesbitt screaming, "Please don't shoot me anymore!" Nesbitt's body was found about 4:30 a.m. by a man leaving a bar who stopped on Crafford Road to urinate. Police identified Nesbitt by an uncashed paycheck in his pocket. They tracked down his bank, where a video camera mounted on the ATM showed a frightened-looking Nesbitt sandwiched between 2 men. Within a week, Atkins and Jones were behind bars. Atkins low IQ was discussed at his trial in 1998, but that was before the latest high court ruling, and it didnt affect his sentence. Eighteen of the 38 states willing to impose the death penalty, plus the federal government, had already declared exceptions for the mentally retarded. Virginia was not among them. During the original proceedings, Circuit Court Judge Prentis Smiley Jr. - the same judge overseeing Atkins current trial - found the defendant fully able to comprehend his case and its consequences. When the case was appealed to the U.S. Supreme Court, the justices ruled 6-3 that execution of the mentally retarded was cruel and unusual punishment. The court said its ruling reflects modern "standards of decency." So far, the fallout has resulted in roughly 50 death row inmates across the nation having their sentences commuted to life in prison. Atkins' case was sent back to Yorktown, where he'll become one of the countrys 1st death row inmates to have a jury decide whether he's mentally retarded. In the meantime, the state has passed legislation that sets guidelines for a legal diagnosis. In addition to an IQ cutoff of 70, the new code requires defendants to prove that they have significant mental shortcomings that impair daily function and that theyve had the disability since before the age of 18. Atkins IQ was never tested as a minor. Without the benefit of an underage score, his lawyers are using testimony from family, friends and teachers. On Tuesday, Atkins mother, Elvira Bullock, testified that her son was a slow learner who "just never got it." Defense attorney Mark Olive told jurors that Atkins' boyhood abilities had been so limited that he did poorly in school, couldn't pass the written portion of the state's driving test and was cut from his high school football team because he couldnt understand the plays. "He was teased unmercifully as a child," Olive said. But Commonwealth's Attorney Eileen Addison said school records reveal a student who simply refused to do the required work and began drinking and doing drugs in middle school. No one, the prosecutor said, "believed Daryl Atkins was mentally retarded until he was facing the death penalty." Jurors will also hear dueling opinions from a battery of psychological experts hired by both sides. Atkins has been evaluated numerous times in prison and has submitted to a host of IQ tests - with scores that have steadily risen. In reports to the court, one doctor said the improved scores are the result of structured prison life combined with repeated test taking. Another said nearly a decade worth of strategy sessions with attorneys stimulated Atkins' intellect. Still others say his current IQ isn't important - that his intelligence at the time of the murder is what really matters. Stanton Samenow is among those who believe Atkins is not retarded. An Alexandria psychologist, Samenow was hired by prosecutors to evaluate Atkins. Samenow included excerpts from their sessions in his book, "Inside the Criminal Mind." In a chapter titled "Getting Over on the Shrinks," Samenow says Atkins chatted about rap lyrics he'd composed and his recipe for cooking chicken; named the current U.S. president, his predecessor and the governor of the state; and bragged about beating TV game show contestants to the answers. He correctly used words such as "parable," "deja vu" and "forensics." "There is no way," Samenow concluded, "that a person who held the conversations I did with this man could reasonably conclude that he was mentally retarded, despite his low IQ score." Over the next 2 weeks, about 100 witnesses are expected to weigh in on the question. Anti-death-penalty and civil rights groups will be among those watching closely. The NAACP held a news conference on the steps of the York courthouse Tuesday. Atkins is black and his victim was white. The National Association for the Advancement of Colored People objects to only one black person being placed on the jury. Jack Payden-Travers of the Charlottesville-based Virginians for Alternatives to the Death Penalty also came to Yorktown on Tuesday. "Unfortunately, rather than trying to comply with the Supreme Court, Virginia is still trying to execute the mentally retarded," Payden-Travers said. (source: The Virginian-Pilot) ********************* Atkins Death Sentence Would Violate Spirit and Intent of Supreme Court Decision----High Court ruled executing the mentally retarded is cruel and unusual punishment Angela Ciccolo, NAACP Interim General Counsel, today called on Virginia to spare the life of Daryl Atkins, a mentally retarded man convicted of murder, because the U.S. Supreme Court has ruled that executing the mentally retarded is "cruel and unusual punishment." "It is important to uphold the spirit and the intent of the U.S. Supreme Court's decision and to join the rest of the civilized nations of the world in prohibiting the execution of mentally retarded defendants," said Ciccolo. "Atkins has an IQ of 59," she said. "He clearly doesn't belong on Virginias death row. At the very least, the Commonwealth should consider incarceration rather than the death penalty given his diminished mental capacity." The national NAACP joins with the Hampton Branch NAACP in asking York County Commonwealth Attorney Eileen Addison to not pursue the death sentence. "If the Supreme Court decided that executing the mentally retarded was cruel and unusual punishment based on Atkin's IQ, why is it necessary for the prosecutor to push for death?" Hampton NAACP President Carmen Taylor asked. The NAACP has long opposed the death penalty because in many states there has been a disproportionate number of African Americans sentenced to death, particularly when the crime involves a white victim. The 27-year-old Atkins received a death sentence for the 1996 killing of 21-year-old Eric Nesbitt. An appeal of his conviction led the U.S. Supreme Court in 2002 to rule against the execution of the mentally retarded. In the wake of the Court ruling, death sentences of many mentally retarded offenders across the nation have been commuted to life in prison. Atkins now seeks life imprisonment based on his mental retardation. A trial on that question began Monday in Yorktown, Virginia. Atkins was convicted of capital murder after he and William Jones allegedly abducted Nesbitt and forced him to withdraw money from an ATM. Jones was allowed to plead guilty in exchange for a life sentence. Atkins pled not guilty. Although the Supreme Court decided in the Atkins case that the Eighth Amendment prohibits the imposition of the death penalty, the decision did not eliminate his death sentence. The high Court sent the case back to Virginia state courts to determine his mental status. Atkins' lawyers asked eight mental health professionals to examine him and all concluded he is mentally retarded. The prosecution had 3 mental health professionals examine Atkins. They concluded that his IQ shows significant limitations in intellectual functioning, but does not denote mental retardation. Taylor said she is concerned that having the sentencing trial in Yorktown will mean the jury might not contain many African Americans. Nesbitt was white, and Taylor said that historically African Americans accused of murdering whites are given harsher sentences. Founded in 1909, the NAACP is the nation's oldest and largest civil rights organization. Its half-million adult and youth members throughout the United States and the world are the premier advocates for civil rights in their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors. (source: NAACP) ******************** Lawyers Spar Over Mental Level of Inmate Teachers, friends and family of a convicted murderer did not claim the man was mentally retarded until he faced the death penalty, a prosecutor told jurors. Commonwealth's Attorney Eileen Addison made the assertion Tuesday during opening statements in a trial that will determine whether Daryl Atkins is mentally retarded. Atkins took his case to the Supreme Court, which ruled it is unconstitutional to execute the mentally retarded. Addison countered a claim by the defense that Atkins struggled in school. She said records show he simply didn't do the required work. Atkins, 27, began drinking and using marijuana in middle school, Addison said, and it was "a steady decline from that point on." But defense lawyer Mark Olive portrayed Atkins as someone so limited mentally that he couldn't get a driver's license and was cut from the football team because he didn't understand the rules. "He was teased unmercifully as a child because of mental slowness," Olive said. Among the 1st witnesses were Atkins' mother and two former teachers, all of whom testified that Atkins struggled with schoolwork. He did not finish high school. The prosecutor's reference to the fact that Atkins had been sentenced to death prompted one of his attorneys, Joseph Migliozzi Jr., to seek a mistrial, but Judge Prentis Smiley Jr. denied the motion. Atkins was 18 when he and William Jones killed Airman 1st Class Eric Nesbitt, 21, for beer money. Nesbitt was abducted outside a convenience store, forced to withdraw money from an automated teller machine and driven to a desolate road, where he was shot 8 times. Prosecutors said Atkins was the triggerman. A plea agreement was reached with Jones, who testified against Atkins and received a life sentence. Three years ago, Supreme Court justices sided with Atkins' lawyers in ruling that execution of the mentally retarded is unconstitutionally cruel, but did not decide whether Atkins has the disability. The determination of whether inmates are mentally retarded was left to the states. Defense lawyers bear the burden of proving that the slight, balding man is mentally retarded. If the jury determines that he is, he will be sentenced to life in prison. Otherwise, he will be executed. An IQ of 70 or below is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself. Atkins scored 59 on an IQ test in 1998, but recorded 74 and 76 on more recent tests. Virginia law, however, also requires that mental retardation be determined by age 18. Atkins' IQ was not tested as a youth. (source: Associated Press) OHIO: Richey's attorneys push to keep his case on the move Attorneys for Kenneth Richey have asked the United States Supreme Court to not delay his case while prosecutors seek another appeal. Richey's attorneys filed the legal brief Tuesday with the nation's highest court saying the state is using the same failed argument it put before the 6th Circuit Court of Appeals and a U.S. District Court in Cleveland. State prosecutors want to place Richey's case on hold while the U.S. Supreme Court decides whether to take it on appeal. The chance of the Supreme Court taking the case is remote. The state is appealing a January ruling by the 6th Circuit that tossed Richey's death penalty conviction. That court ordered Richey must be retried or released within 90 days. Richey was convicted at a 1987 trial of capital murder in the June 30, 1986, death of 2-year-old Cynthia Collins at a Columbus Grove apartment complex. The 6th Circuit tossed the conviction saying Richey's trial attorneys did not do an adequate job representing him and that under Ohio law at the time, prosecutors needed to prove Richey intended to kill the young girl to convict him of capital murder. Prosecutors said Richey's target was his exgirlfriend. While the state seeks to have the nation's highest court take the case, Putnam County Prosecutor Gary Lammers is making plans to retry the case. Lammers has said he would seek new charges against Richey through a grand jury indictment. The indictment is not expected to be handed down until sometime in August and Lammers has said it could contain charges that could carry the death penalty. The state also is gearing up to fight an order from the 5th District Court of Appeals in Ohio that ordered Richey be moved from Ohio's death row to the Putnam County jail. The state has until Aug. 3 to move Richey or to give a good reason for not moving him. Even if the state wins that argument, it's likely Richey will be back in Putnam County in jail within weeks. Once Lammers has new charges, Richey will be transferred to the jail while his case moves through court. (source: Lima News) ******************************* Judge refuses to stop Spirko's Sept. 20 execution A federal judge yesterday refused to halt - at least for now - the scheduled Sept. 20 execution of John Spirko, convicted in the 1982 murder of a small-town postmistress in Van Wert County. Spirko's attorneys have asked U.S. District Judge James G. Carr in Toledo to vacate the prior decision upholding his conviction and death sentence on the grounds that the prosecution perpetrated a fraud on the court in the original appeal. Ohio Attorney General Jim Petro will ask the judge to throw out the claim, arguing Spirko has been unable to prove the prosecution covered up its presentation of a false theory during the trial 2 decades ago. The prosecution maintained that Betty Jane Mottinger, 48, was kidnapped and later stabbed to death by Spirko and his accomplice, former cellmate Delaney Gibson. An eyewitness, now deceased, identified Gibson as the man she saw outside the post office the morning of Mrs. Mottinger's disappearance. Spirko had since shown on appeal that Gibson was in North Carolina the night before and shortly after the murder and that he had a full beard at the time. The old photo the witness used to identify him in absentia during Spirko's trial showed a clean-shaven Gibson. "Every witness that they chose to depose, [postal inspectors] Tom Strausbaugh and Paul Hartman, all of the evidence alive today, is that Delaney Gibson was likely the 2nd person there," said Tim Prichard, senior deputy attorney general. "The eyewitness testified that she was 100 % sure when she identified Delaney Gibson," he said. "She's since passed away, but there has been nothing that attacks that identification." Spirko's attorneys hope to persuade Judge Carr to reopen the original appeal upholding the conviction, a decision upheld by the 6th U.S. Circuit Court of Appeals. The U.S. Supreme Court refused to reconsider it. If successful in convincing Judge Carr to reopen his appeal, Spirko would seek a new trial. Meanwhile, his attorneys will prepare for an Aug. 23 hearing in which they will try to convince the Ohio Parole Board that Gov. Bob Taft should grant Spirko clemency, something he's done just once before in a death-penalty case. On the day the 6th Circuit upheld his conviction last year, the county prosecutor dropped its indictment against Gibson. "It's absurd to claim Delaney Gibson had any involvement," said Spirko attorney Alvin Dunn. "What they're claiming is that the information they had at the time didn't preclude the possibility he was involved. "We believe that, when you look at everything the state knew at the time, the state knew Delaney Gibson wasn't involved in this heinous crime," he said. "If he is granted a new trial, the state will not try at all to argue that Delaney Gibson was involved." Spirko, 59, lived in Swanton with his sister at the time of his arrest, having been recently paroled after serving time in Kentucky for a separate robbery-murder. He maintains he tried to trade false information about the Mottinger crime for leniency for himself on an unrelated assault charge and for his girlfriend, who was charged with helping to plot his failed prison escape. Investigators dismissed as fabrications the stories he told over the course of about 2 1/2 months, but they latched onto his connection with Gibson and details they said could be known only by the killers. "Spirko claimed that he learned all of this information from Delaney Gibson," said Mr. Prichard. "That was his defense under oath and trial and during a press conference immediately after the trial." In a court-ordered deposition taken in June, Mr. Hartman an said that, while he believes Spirko and Gibson were involved, he later came to the conclusion others were probably also involved. At the time of the trial, he expressed doubts they could win a conviction against Delaney. "Well, at that time and after that time, I had real serious concerns about any communication between the 2, and quite frankly, how does one arrive at a consensus to meet at the post office in Elgin, Ohio? A community of 61 people, not on a main highway," he said. "So it was clear something was missing," he said. "And I never accepted then that we know enough. I further never accepted the fact that we had all the people. We didn't." (source: Toledo Blade) ******************** Judge won't delay execution ---- Spirko still seeking a new trial A federal judge in Toledo has declined to postpone John Spirko's September execution, saying he still has time to consider arguments that the state used fraud to thwart Spirko's earlier appeals. Spirko was sent to death row 20 years ago for the abduction and murder of Elgin, Ohio, postmaster Betty Jane Mottinger. The conviction was upheld during several rounds of appeals. But in the past year, former Postal Inspector Paul Hartman - the state's lead investigator and star witness in the case - has told several people that he never believed a key element of the case against Spirko, and that he told prosecutors of his doubts before the 1984 trial began, according to transcripts and sworn statements filed in court. Spirko's lawyers had sought to delay the Sept. 20 execution while U.S. District Judge James Carr reviewed their claims that Hartman's statements showed the state misled the court. Carr on Tuesday declined to delay the execution on procedural grounds, but gave lawyers until early September to argue the underlying issues. Spirko also has a clemency hearing Aug. 23 before the Ohio Parole Board. Spirko's lawyers were disappointed Carr didn't order a postponement. "But we're encouraged the judge indicated he will be able to rule on the substance of the matter before the scheduled execution," said Alvin Dunn, a Spirko lawyer. Ultimately Spirko seeks a new trial. The Ohio attorney general's office applauded Carr's ruling. It has pressed for Spirko's execution and defended prosecutors, saying there was no evidence of bad faith. It argues Spirko's conviction has been thoroughly reviewed in several appeals, and wants Carr to dismiss Spirko's fraud claim. "There is zero evidence," said Tim Prichard, senior deputy attorney general. Former Van Wert prosecutor Stephen Keister has denied that Hartman ever told him he doubted a key element of the prosecution's case. And Hartman said last month in sworn testimony filed with the court that statements he made on tape to The Plain Dealer and similar statements to Spirko's lawyers were deliberate falsehoods made to mislead them. Spirko's lawyers say this only raises more issues about Hartman's credibility. (source: Associated Press) PENNSYLVANIA: 2 death sentence in Pa. officer's killing A man convicted of killing a police officer more than 25 years ago was sentenced yesterday to death after his original death sentence was overturned on appeal. Michael Travaglia, 46, formerly of Washington Township in Westmoreland County, and another man, John Lesko, had been convicted in the January 1980 murder of Apollo Police Officer Leonard Miller, whose death capped a weeklong rampage in which 3 other people were killed. Police dubbed the crimes "kill for thrill," because no motive was ever found. Lesko remains on death row. (source: Associated Press)
