August 25
VIRGINIA:
Atkins' lawyers to file appeal----The case, already unprecedented in
Virginia, may hold lessons for the legal profession in future trials.
Defense attorneys who failed to convince a jury that death row defendant
Daryl Atkins was mentally retarded are planning to appeal the case to the
Virginia Supreme Court by early September.
Capital defender Joseph Migliozzi said recently that his office would file
a notice of appeal within the 30 days the law allows.
He said the Virginia Supreme Court is required to review the case for
appeal because it involves the death penalty. Migliozzi didn't want to
discuss his reasons for an appeal before his brief is filed, but said that
his concerns were noted in pretrial motions.
Atkins was sentenced to death in 1998 for killing 21-year-old Langley
airman Eric Nesbitt following a robbery. In 2002 the U.S. Supreme Court
barred execution of the mentally retarded calling it cruel and unusual
punishment based on Atkins' case.
But because the U.S. Supreme Court focuses on constitutional issues and
not matters of fact, Virginia's courts were left to determine Atkins'
mental state under Virginia law.
Atkins' trial was the state's 1st on retardation in a capital case.
Prosecutors, defense attorneys and judges may take cues from the way the
Atkins case was handled in making their arguments and decisions in future
capital cases involving mental retardation.
During Atkins' trial, which ended in early August, Atkins' attorneys
argued that his low intelligence scores, extremely poor school performance
and lack of reasoning ability proved he was retarded. Prosecutors
countered that Atkins' IQ scores and school records showed he was simply a
low-functioning person who made bad choices.
In closing arguments the case focused heavily on Atkins' ability to mow a
lawn, do laundry, cook, drive or deal drugs. The matter of his
intellectual abilities was murkier because experts for both sides agreed
that either a low-functioning adult or someone with mild mental
retardation could produce Atkins' intelligence scores.
The York-Poquoson jury decided the defense didn't prove by a preponderance
of evidence that Atkins was retarded. As a result, Atkins remains on death
row. Had the jury found him retarded, his sentence would have been
commuted to life in prison.
David Bruck, director of the Virginia Capital Case Clearinghouse, said the
judge who presided over the trial, Prentis Smiley Jr., made the jury's job
unnecessarily difficult.
"There's an issue of whether the judge clouded the issue by telling them
(jurors) this is a landmark case involving a death row inmate who would be
executed if they did not come back with a finding of mental retardation,"
Bruck said.
The state legislature and Virginia Supreme Court resolved, when the case
came back to Virginia, that jurors should decide about retardation without
a discussion of past convictions getting in the way, Bruck said.
Before the trial, Smiley had said he would instruct jurors about Atkins'
capital murder conviction over defense attorneys' objections. During a
pretrial hearing, Smiley said he didn't understand how the jury could
consider the retardation case without knowing the facts.
"There is a pretty serious question about whether the jury was given what
it needed to do its job without being polluted with a lot of other issues.
Whether someone has mental retardation or not has nothing to do with what
the Supreme Court did or whether another jury put him on death row," said
Bruck. "All that is irrelevant."
Most states separate the retardation issue from evidence about a murder,
Bruck said, either allowing judges to decide retardation before trial or
organizing the process so jurors aren't overwhelmed with graphic details
of a crime while trying to determine a defendant's mental limitations.
Whatever the Virginia Supreme Court decides in an appeal of Atkins' case,
jurors in his retardation trial heard far less about the crimes that led
to the capital murder conviction than future juries will.
In future cases in Virginia, jurors will decide whether a defendant is
guilty of capital murder and, if they convict the defendant, attorneys can
then present evidence about mental retardation to the same jurors. Bruck
thinks Virginia's process poses serious legal problems.
"The jury's supposed to decide mental retardation at the same time it's
dealing with horrible facts of a murder and hearing victim impact
statements from the victim's family," he said.
Both Bruck and Roger Groot - a Washington and Lee University School of Law
professor who does capital defense work - are critical of the state's
decision to require defense attorneys to prove retardation instead of
requiring prosecutors to prove that defendants aren't retarded.
Putting the burden on defense attorneys means that if a jury feels the
evidence is evenly balanced between the defense and the prosecution, the
defense loses the case, Bruck said.
"An even split would mean there's a 50 % chance the defendant is retarded,
and you'd still be executing a retarded person, which is
unconstitutional," Bruck said.
Bruck thinks the U.S. Supreme Court could overturn Virginia's process of
handling mental retardation issues in capital cases.
Groot believes the Virginia General Assembly set up the process of
assessing retardation this way because the state doesn't want interference
in application of the death penalty. "They want it to be as easy as
possible for people to get the death penalty," Groot said.
He thinks the state should have the burden of proof as it does in cases
involving juveniles charged with capital murder. Groot said once defense
attorneys provide proof of age and file a motion of ineligibility for the
death penalty based on age, the death penalty is no longer an issue with
juveniles.
"The state has to prove eligibility for the death penalty," Groot said.
But College of William and Mary School of Law professor Paul Marcus
disagrees, noting, "With juveniles there's no contradictory evidence - a
person's either a juvenile or not."
Determining retardation is a cloudier issue that can lead to debate, as
was the case with the Atkins' trial, Marcus said.
Defense attorneys, prosecutors and judges will likely examine what
happened in Atkins' case when mental retardation is contested in future
capital murder trials, Marcus said.
"When there are so few cases, you'll look to what you have," Marcus said.
"It's important because it's the first one."
(source: The Daily Press, Aug. 21)
