February 6, 2005
Inmate's Rising I.Q. Score Could Mean His Death
By ADAM LIPTAK
ORKTOWN, Va., Feb. 3 - Three years ago, in the case of a Virginia man named Daryl R. Atkins, the United States Supreme Court ruled that it was unconstitutional to execute the mentally retarded. But Mr. Atkins's recent test scores could eliminate him from that group.
His scores have shot up, 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 Mr. Atkins was retarded, noted that he scored 59 on an I.Q. test in 1998. The cutoff for retardation in Virginia is 70.
A defense expert who retested Mr. Atkins last year found that his I.Q. was 74. In court here on Thursday, prosecutors said their expert's latest test yielded 76.
Mr. Atkins, a slight, balding 27-year-old in an orange jumpsuit, 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 A.T.M. and then shot him eight times, killing him.
He will be one of the first death row inmates to have a jury trial on the question of whether he is retarded. The jury's decision will determine whether his life will be spared.
Mr. Atkins's more recent scores should be discounted, a clinical psychologist who tested him in 1998 and 2004 said, because they are the result of "a forced march towards increased mental stimulation" provided by the case itself.
"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. That included practicing his reading and writing skills, learning about abstract legal concepts and communicating with professionals."
In helping put an end to the death penalty for the mentally retarded, then, Mr. Atkins could have ensured his own execution.
Prosecutors say that Mr. 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."
Ms. Addison has said that Mr. Atkins's crime also proves that he is not retarded. In an interview last year, she said that his ability to load and work a gun, to recognize an A.T.M. card, to direct Mr. Nesbitt to withdraw money and to identify a remote area for the killing all proved that Mr. 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 Mr. Atkins's scores may have risen. I.Q. scores are rarely completely stable and can drift, though within a relatively narrow range, typically by five points up or down. Psychologists recognize that practice drives scores higher. And I.Q.'s tend to rise over time, by about three points a decade.
Dr. Evans, the defense psychologist, concluded that "Mr. Atkins's 'true' I.Q. is somewhere in the mid- to upper 60's."
Dozens of mentally retarded people have been released from death row as a consequence of the Supreme Court's decision, under agreements and judicial findings. Others will face trials like Mr. Atkins's. David M. Gossett, a Washington lawyer who represents a death row inmate in a similar position in Georgia, said incarceration itself may also have a positive effect on the test scores.
"Prisons are highly structured and safe environments," Mr. 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 I.Q. is below 70 or 75, that they lack fundamental social and practical skills, and that both conditions existed before they turned 18.
Mr. Atkins was never tested as a youth, and so the jury will have to consider how to look back using his test scores as a young 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 Mr. Atkins's 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," Judge Smiley said.
Richard Burr, who represents Mr. Atkins along with Joseph A. Migliozzi Jr., disagreed.
"For people real close to the edge, there is nothing easy about that," Mr. Burr said. "There is going to be controverted evidence, subject to sharp disputes and disagreements."
Jurors in Mr. Atkins's case, which will be tried this spring or summer, will probably hear from mental health experts, teachers, family members, classmates and, perhaps, victims of some of the 16 other felonies that Mr. Atkins committed when he was 18 in what Dr. Nelson called a four-month crime spree. He dropped out of high school that year, his third attempt to pass the tenth grade.
Virginia's handling of mental retardation in capital cases is relatively unusual. In new cases, juries in this state do not reach the question until after they have convicted the defendant. Many other states have a judge decide the issue before trial.
Judge Smiley said he planned to tell jurors that Mr. Atkins was convicted and sentenced to death. He will also allow prosecutors to dismiss jurors who say they oppose the death penalty in all circumstances.
Mr. Atkins's lawyers asked the Virginia Supreme Court to reverse those rulings. On Wednesday, that court declined to hear the case.
"This proceeding has veered off the course of fairness," Mr. Burr told Judge Smiley on Thursday. "We want to have the opportunity to prove that Daryl Atkins is mentally retarded."
Mr. Atkins nodded in agreement.
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