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A death row inmate whose case led to the Supreme Court’s ban on executing the mentally retarded was found mentally competent by a Virginia jury Friday and a judge immediately scheduled his execution. Jurors deliberated 13 hours over two days before finding Daryl Atkins not mentally retarded. York County Circuit Court Judge Prentis Smiley Jr. scheduled Atkins’ execution Dec. 2 for the robbery and slaying nine years ago of an Air Force enlisted man. Atkins, 27, flashed a peace sign to his family and blew a kiss as he was led from the courtroom. His mother left the court in tears. The U.S. Supreme Court ruled in Atkins’ case three years ago that executing the mentally retarded is unconstitutional. The Court, however, left it up to states to determine whether inmates are retarded. The York County prosecutor said she agreed with the justices’ decision regarding capital punishment and the mentally retarded but added that Atkins was “the wrong case” for the Court. “We never disagreed that he was probably a slow learner,” Commonwealth’s Attorney Eileen Addison said. “That’s not the same as being mentally retarded.” Atkins’ lawyers maintained they had established their client’s mental retardation. “People in this community rejected that. We don’t know why,” attorney Richard Burr said. One juror wiped away tears as the panel was polled, but none would comment on the case afterward. If the jury deemed Atkins retarded, he would have been spared execution and instead sentenced to life in prison. The jury of six men and six women did not include any blacks, and had been watched closely by member of the National Association for the Advancement of Colored People. Atkins is black. Testimony in the case centered on Atkins’ mental capabilities. The defense portrayed him as so limited he was cut from the football team because he couldn’t understand the plays. The prosecution blamed his poor performance in school on the use of drugs and alcohol, and said the claim of mental retardation was a ploy to avoid execution. Both sides called expert witnesses who disagreed on whether Atkins fell into the category of mentally retarded. An IQ of 70 or less by the age of 18 is required to be considered mentally retarded in Virginia, which also takes into account social skills and the ability to care for oneself. Atkins had scores of 59, 67, 74 and 76 on IQ tests, but they were given when he was older than 18. 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. Nesbitt’s family attended the trial, and his mother declined to be interviewed outside the courthouse Friday. “It was distressing to them that we went through two weeks never mentioning their son’s name,” Addison said. Eighteen states already had laws on the books exempting the mentally retarded from execution before the Supreme Court’s ruling in Atkins’ case. Eight, including Virginia, have revised their laws to comply with the ruling. Atkins’ lawyers said they planned to appeal. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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