Image: Daryl Atkins
Joe Fudge  /  Daily Press
Daryl Atkins, in court in 1998, led the U.S. Supreme Court to bar execution of the mentally retarded as unconstitutional. Three years after the landmark ruling, a jury will decide his mental competence.
updated 7/25/2005 2:43:01 PM ET 2005-07-25T18:43:01

Prospective jurors gathered Monday for a court proceeding that the judge told them was unique in judicial history — judging the mental competence of a killer whose case led to a landmark U.S. Supreme Court ruling.

The high court justices sided with the argument by Daryl Atkins' lawyers that executing the mentally retarded was unconstitutional. Three years later, whether that saves Atkins' own life is still unclear.

Atkins, 27, has been on death row for the 1996 robbery and murder of an Air Force enlisted man. While the high court's ruling in June 2002 protected the severely mentally retarded, it provided little guidance for the far greater number of inmates, like Atkins, who are borderline cases.

"This case is going to be unique in the annals of judicial history," Circuit Judge Prentis Smiley Jr. told a pool of 70 potential jurors during jury selection Monday.

Mental retardation must be proven
"If he is mentally retarded, by law his sentence is commuted to life in prison," Smiley told the jury panel. He said Atkins "must prove he is mentally retarded by ... a preponderance of the evidence."

If Atkins fails to meet that burden, Smiley told potential jurors, another court already has determined that he will be executed.

The pool was randomly narrowed to 27. While there were a few blacks in the larger group, all the potential jurors in the smaller pool were white. Atkins is black.

The defense brought in a psychologist to help decide which jurors to strike. Atkins sat slouched at the defense table.

Defense attorneys did not want the jury to be told that Atkins had been convicted of murder and sentenced to death. Smiley denied that request earlier this year and refused to reconsider it last week. But he did say he would not dwell on Atkins' crime, just tell jurors the only issue was whether he was retarded.

Preparations for determining Atkins' mental level have taken two years. As many as 100 witnesses could be called during the trial, which is scheduled to last two weeks.

Atkins' capabilities not previously tested
Atkins, who did not finish high school, scored 59 on an IQ test in 1998, but recorded 74 and 76 on more recent tests. An IQ of 70 or less is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself.

However, Virginia law also requires that mental retardation be determined by the age of 18. That presents a challenge for the defense, which must prove Atkins is retarded, because his IQ was not tested as a youth.

Image: surveillance photo
Hampton Police  /  The Daily Press
This surveillance photo from an ATM shows Eric Nesbitt seated between two men in his pickup truck after being kidnapped outside a convenience store and forced to withdraw money Aug.1996 in Va. Police say the man on the left is Daryl Atkins, then 18.

There's no clear legal standard for determining mental retardation, said Paul Marcus, a law professor at the College of William & Mary. "Mental health professionals themselves don't agree on it," said Marcus, who has done research on criminal confessions by people with low IQs.

The high court left it to states to determine which death row inmates are retarded, and states have disagreed over where to draw the line. Many set an IQ of 70 as the cutoff, while others have no set number and Arkansas set its standard as 65, according to the Death Penalty Information Center in Washington, D.C.

He pulled the trigger
Atkins and another man killed Airman 1st Class Eric Nesbitt, 21, in August 1996 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 eight times.

Prosecutors said Atkins was the triggerman, and a plea agreement was reached with William Jones, who testified against Atkins. Jones is serving a life sentence.

Following the Supreme Court ruling on Atkins three years ago, other states commuted the death sentences of inmates determined to be mentally retarded. Neighboring North Carolina has removed about 10 inmates from death row as a result of the ruling, according to Death Penalty Information Center Director Richard Dieter.

Before the high court's ruling, 18 states already had laws on the books exempting the mentally retarded from execution. Eight, including Virginia, have revised their laws to comply with the ruling.

Only Virginia — and Louisiana, at the prosecutor's discretion — make the determination after a conviction. The others require that it be decided before trial whether a defendant is mentally retarded.

© 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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