Boost in IQ test results could mean death for Virginia inmate

If jury finds he's retarded, his life will be spared


YORKTOWN, Va. - Three years ago, in the case of a Virginia man named Daryl R. Atkins, the U.S. Supreme Court ruled that it was unconstitutional to execute the mentally retarded. But Atkins' recent test scores could eliminate him from that group.

His scores have increased, a defense expert said, thanks to the mental workout his participation in years of litigation gave him.

The Supreme Court, which did not decide whether Atkins was retarded, noted that he scored 59 on an IQ test in 1998. The cutoff for retardation in Virginia is 70.

A defense expert who re-tested Atkins last year found that his IQ was 74. In court here on Thursday, prosecutors said their expert's latest test yielded 76.

Atkins, 27, sat slumped with his chin on his hand as lawyers argued about whether his intelligence was low enough to spare him from execution. In 1996, he and another man abducted Eric Nesbitt, 21, an airman from Langley Air Force Base, forced him to withdraw money from an ATM and then shot him eight times, killing him.

He will be one of the first death row inmates to have a jury trial, which will be held in spring or summer, on the question of whether he is retarded. The jury's decision will determine whether his life will be spared. Atkins' more recent scores should be discounted, a clinical psychologist who tested him in 1998 and last year said, because they are the result of "a forced march toward increased mental stimulation" provided by the case.

"Oddly enough, because of his constant contact with the many lawyers that worked on his case," the psychologist, Dr. Evan S. Nelson, wrote in a report in November, "Mr. Atkins received more intellectual stimulation in prison than he did during his late adolescence and early adulthood."

Prosecutors say that Atkins has never been retarded and that the recent tests confirm it. "I don't see how a 76 is exculpatory and evidence of mental retardation," Eileen M. Addison, the commonwealth's attorney here, said in court on Thursday. "It needs to be under 70."

Addison has said that Atkins' crime also proves that he is not retarded. In an interview last year, she said that his ability to operate a gun, to recognize an ATM card, to direct Nesbitt to withdraw money and to identify a remote area for the killing all proved that Atkins is not retarded.

"I don't believe the truly mentally retarded commit these kinds of crimes," she said last year. She did not respond to recent messages seeking comment.

There are several other reasons that Atkins' scores may have risen. IQ scores are rarely completely stable and can drift, though within a relatively narrow range, typically by 5 points up or down. Psychologists recognize that practice drives scores higher.

Nelson concluded that "Mr. Atkins' `true' IQ is somewhere in the mid- to upper 60s."

Dozens of mentally retarded people have been released from death row because of the Supreme Court's decision, under agreements and judicial findings. David M. Gossett, a Washington lawyer who represents a death row inmate in a similar position in Georgia, said incarceration itself might also have a positive effect on the test scores.

"Prisons are highly structured and safe environments," Gossett said. "They're sometimes good environments for the mentally retarded. These people are not vegetables. They can learn. These are people who can get better at taking tests."

In old cases and new ones, courts across the country have been struggling to interpret the Supreme Court's decision. Seven states have passed new laws, according to the Death Penalty Information Center.

They have adopted essentially the same definition of mental retardation, requiring defendants to prove three things: that their IQ is below 70; that they lack fundamental social and practical skills; and that both conditions existed before they turned 18.

Atkins was never tested as a youth, and so the jury will have to consider how to look back using his test scores as an adult.

The defense bears the burden of proving he is retarded, so the absence of scores from when he was young and the relatively high current test numbers may hurt his case.

"I don't know what you have before age 18," Judge Prentis Smiley Jr., of the York County Circuit Court here, told Atkins' lawyers on Thursday. "That's your problem."

The judge described a clear standard. "The issues are bright lights and targeted with a bull's-eye," Smiley said.

Richard Burr, who represents Atkins along with Joseph A. Migliozzi Jr., disagreed.

"For people real close to the edge, there is nothing easy about that," Burr said. "There is going to be controverted evidence, subject to sharp disputes and disagreements."

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