Jury to Decide Whether Death Row Inmate is Mentally Retarded

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A lawyer for a death row inmate told jurors Tuesday his client was so limited mentally he couldn't get a driver's license or make the school football team. But a prosecutor said Daryl Atkins' claimed mental retardation was a ploy to avoid execution.

"None of his teachers, friends or family believed Daryl was mentally retarded until he was facing the death penalty," Commonwealth's Attorney Eileen Addison said during opening statements.

But defense lawyer Mark Olive portrayed Atkins as someone who struggled through life because of his limited mental abilities.

"He was teased unmercifully as a child because of mental slowness," Olive said.

A jury was seated earlier Tuesday for a trial that will determine whether Atkins, whose case led the U.S. Supreme Court to bar execution of the mentally retarded, is himself retarded.

Some 100 witnesses could be called during the trial, which is scheduled to last two weeks.

In his address to jurors, Olive said Atkins couldn't get a driver's license because he couldn't pass the test, and he was cut from the football team because he didn't understand the rules.

"He just couldn't get it," Olive said.

Addison said, however, that school records show Atkins, 27, simply didn't do the required work and began drinking and using marijuana in middle school, and it was "a steady decline from that point on."

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 eight 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.

York County Circuit Judge Prentis Smiley told jury prospects Monday that their only assignment would be to decide Atkins' mental capacity.

"This case is going to be unique in the annals of judicial history," he said.

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 less is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself.

Atkins, who did not finish high school, scored 59 on an IQ test in 1998, but recorded 74 and 76 on more recent tests.

However, Virginia law also requires that mental retardation be determined by the age of 18. Atkins' IQ was not tested as a youth.