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Published in Print: October 9, 2002, as Death Row Decisions

Death Row Decisions

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When Daryl Renard Atkins was in school, no one came to the conclusion that he was mentally retarded—or even in need of special education.

But years later, school records and teacher recollections helped establish the Virginia death row inmate's diagnosis in time to avert his execution. He had faced the death penalty after being convicted of capital murder in the 1996 killing of Eric Michael Nesbitt, 21, an airman stationed at Langley Air Force Base in southeastern Virginia.

Mr. Atkins' case, Atkins v. Virginia, eventually wound its way to the U.S. Supreme Court last term. The court ruled June 20 that the execution of mentally retarded people is unconstitutionally cruel and unusual punishment.

The decision puts the K-12 special education community, and school officials in general, in an unusual position: Clinical decisions made about a student could be critically important later if that afflicted child becomes a convicted adult.

Criminal- defense lawyers now say that student special education records documenting the mental retardation diagnosis of defendants will prove to be key in such cases. So will testimony from teachers or from school psychologists.

But will such records be around when lawyers start looking? No federal law requires schools to keep special education records permanently. And state laws vary on how long special education records must be kept, typically ranging from three to seven years after the students graduate or otherwise leave school.

"We are increasingly hearing proposals to destroy special education records after three or five years," said James W. Ellis, a law professor at the University of New Mexico and Mr. Atkins' lawyer. "That is catastrophic for these cases for everybody's side. There has to be access to these records so the court can explore these records."

Federal law says schools can destroy such records at the parents' request or the education officials' behest as soon as they are "not educationally useful." Parents must be given notice if the district intends to destroy special education records. School officials may keep indefinitely basic information such as students' names, addresses, dates of graduation, attendance records, and grades, the Individuals with Disabilities Education Act says.

"There is only so much space to store stuff," said Charles Rogers, a spokesman for the Council for Exceptional Children, a special education advocacy group based in Arlington, Va. "I'm sure schools are eager to clean up their records to make way for new students and their records."

With the stakes so high in death-penalty cases, some fear that in the wake of the Supreme Court's decision, defendants will fake being mentally retarded by intentionally doing badly on intelligence tests or feigning other signs of incapacity. Justice Antonin Scalia, on the losing end of the court's 6-3 ruling in June, expressed concern about such deception in his dissenting opinion.

"One need only read the definition of mental retardation adopted by the American Association of Mental Retardation and the American Psychiatric Association to realize that the symptoms of this condition can readily be feigned," Justice Scalia wrote.

Early Diagnosis

To be diagnosed as mentally retarded, according to the American Association of Mental Retardation, an individual must have an IQ score lower than 70 and also exhibit a limited ability to communicate, work, or take care of himself. Mental retardation typically is genetic, or is caused by events in the womb or during delivery, and the symptoms may not be evident for some years. But, the association says, the condition manifests itself before age 18.

Therefore, defense lawyers say, a diagnosis of the condition in students' early years can be trusted. No student or parent would be motivated to falsely claim a stigmatizing condition at that point, they say, years before such a diagnosis might come in handy before a jury. That's where schools come in.

"It is conceivable that now we are going to have these people who become 'mentally retarded' overnight," said Chris Adams, a spokesman for the National Association of Criminal Defense Lawyers.

"School records are, hands down, the best evidence to prove whether [a defendant] is or is not retarded," continued Mr. Adams, who is an Atlanta-based lawyer for the Southern Center for Human Rights, a nonprofit death-penalty and prisoners' rights defense firm.

Could a school district find itself the target of an educational malpractice lawsuit from a criminal defendant claiming that his school inaccurately appraised his mental capacity, thus exposing him to the death penalty? Special education advocates dismissed that possibility. Accused killers are on trial, they said, not school districts.

"Using school records would not be done to call into question any diagnostic judgment by a school," said David Egnor, the senior director for governmental relations for the Council for Exceptional Children. "It would be part of the information that a court would consider."

In the case of Mr. Atkins, the Virginia convict, even though he was not diagnosed as mentally retarded in his school years, school records and teachers' testimony from the state's Hampton school system portrayed a student who clearly had limited intellectual abilities. Educators there may have missed out on saving his education, but they may have saved his life. At least for now.

The state of Virginia is disputing whether Mr. Atkins is in fact mentally retarded. Since the Supreme Court decision, states have been left to devise appropriate ways of applying the new prohibition and of defining mental retardation. Lawyers say to expect bills in state legislatures this coming January that address the issue.

No dispute remains, however, that Mr. Atkins is a murderer.

Around midnight on Aug. 16, 1996, Mr. Atkins, who was 18 at the time, and his former neighbor in Hampton, William A. Jones, armed with a semiautomatic handgun, confronted Mr. Nesbitt, an airman first class, outside a convenience store. The two men drove him away in Mr. Nesbitt's pickup truck and robbed him of the $60 he had in his wallet, then drove him to an automatic teller machine so he could withdraw another $200. A camera at the ATM recorded the entire transaction.

The two then drove Mr. Nesbitt 18 miles to a secluded road in York County, Va., where he was shot eight times and died. Here's where the story gets murky: Each man says the other was the one who did the shooting. Only the person who pulls the trigger is eligible for the death penalty under Virginia law. Mr. Jones entered into a plea agreement with prosecutors, who dropped several of the charges against him in return for his testimony against Mr. Atkins. Mr. Jones is serving a life sentence plus three years for first-degree murder and the use of a firearm.

A York County jury in 1998 had sentenced Mr. Atkins to die for capital murder, abduction, and robbery. Because of a procedural glitch, a second jury reconsidered Mr. Atkins' sentence, this time with the state disputing his mental retardation diagnosis. The defense presented his IQ score, teacher testimony, and school records. Again, in October 1999, he was sentenced to death.

At the time of his 1998 trial, Mr. Atkins scored a 59 on IQ tests. But school officials had spotted his problems long before then. In school, he scored below the 20th percentile on every standardized test, failed the 2nd and 10th grades, and was advanced from the 4th grade to the 5th grade for social reasons, rather than on academic merit, said Mr. Ellis, his lawyer.

"A number of teachers identified the basic problems, but nobody ever sent him to special education," Mr. Ellis said. "We were puzzled why that hadn't happened. It was still possible to prove through teachers."

No Change in Methods

So should schools be bracing themselves to handle mental retardation cases differently? Not at all, lawyers and educators say. Mr. Adams of the defense lawyers' association did say, however, that educators should expect the demand for access to special education records to increase.

Mr Adams does not expect the new state laws to address how long schools should have to keep special education records. But he said he plans to lobby states to take up that issue next.

Experts say 10 percent of the 3,600 inmates currently on death row around the country are mentally retarded. Between 1 percent and 3 percent of the general population is mentally retarded. Before last June's Supreme Court decision, 18 states of the 38 that allow the death penalty had already passed laws barring the execution of people who are mentally retarded. Experts expect the Supreme Court decision will move at least 200 people off death row.

Since the mid-1970s, after a Supreme Court ruling allowed states to reinstate the death penalty, 35 mentally retarded people have been executed in the United States, according to Amnesty International.

As of last year, about 614,000 American ages 6 to 21 had some level of mental retardation and needed special education in school, according to the U.S. Department of Education.

Education groups say schools will not change the way they diagnose mental retardation in students as a result of the Supreme Court decision. Schools come up with the diagnosis by administering IQ tests and observing the students' abilities to function.

In fact, said Mr. Ellis, the lawyer for Mr. Atkins, an objective diagnosis is possible only if schools proceed as they normally would in trying to diagnose and help any student with special needs.

"No parent or school wants to be building a record in the event that their child kills somebody," Mr. Ellis said. "It has been distressing to see educators have clear evidence in hand of a student's mental retardation and not come up with an educational program. The criminal-justice system is not the reason to do it right."

Vol. 22, Issue 6, Pages 1,12

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