Academic journal article The William and Mary Bill of Rights Journal

The Daryl Atkins Story

Academic journal article The William and Mary Bill of Rights Journal

The Daryl Atkins Story

Article excerpt

INTRODUCTION.................................................364

I. Riding the Coattails of the McCarver Lightning Strike........364

n. Luck's Hand in Winning A tkins: State Legislation, Changing Winds about Innocence and the Risk of Wrongful Executions for Persons with Intellectual Disability, and Jim Ellis ...........366

A. The Wave of New Intellectual Disability Statutes ...............366

B. DNA, the Proven Unreliability of Sentences of Death, and the Disadvantages Persons with Intellectual Disability Have in the Criminal Justice System ...................................368

1. The Fact Section of Atkins's Brief-Showing Daryl Atkins's Disability....................................369

a. The Killing of Eric Nesbitt-Who Was the Triggerman, Jones or Atkins?...................................369

b. Showing Daryl Atkins's Relative Vulnerability...........369

2. The Argument Section of Atkins's Brief-The Risk of Wrongful Executions..................................370

C. Jim Ellis Argues His First Case-Explains Pertinent Legislative History and the Risks of Wrongful Executions..................372

D. Justice Stevens and the Court 's Independent Judgment- Persons with Intellectual Disability Face a Special Risk of Wrongful Executions......................................373

HI. The Finding that Daryl Atkins Is Not a Person with Intellectual Disability, and Reversal.......................375

IV. The Proof of the Pudding Is in the Eating: Mr. Atkins's Disability in Fact Made Him Vulnerable to a Wrongful Execution, and By Luck He Proved It ........................376

A. Jones Just Said What He Was Told to Say.....................376

B. A Life Sentence Is Imposed-Proof of Who the Triggerman Was Evaporated.........................................378

C. The Final Fortuity-No Jurisdiction to Review a Decision Entered Without (?) Jurisdiction....................................379

Conclusion ..................................................380

Introduction

This [Atkins] case is a case that is going to be unique in the annals of judicial history.1

Unique? Whether aperson sentenced to death actually will or will not be executed is a roll of the dice. Being in the right place at the right time, having relevant legal developments occur unexpectedly, uncovering (or miraculously receiving) new evidence, and essentially getting in the way of good luck separates executed, deathsentenced inmates from saved ones. In that sense, Daryl Atkins's case is not unique in the annals of judicial history; rather it is emblematic of many of the well-documented ills of capital punishment in this country. Daryl Atkins, at the end, was in the very, very lucky column. His story illustrates the fluky, fortuitous, and frightening circumstances that cause executions to strike like lightning.2

I. Riding the Coattails of the McCarver Lightning Strike

In 1989, the Supreme Court held in Penry v. Lynaugh3 that the execution of persons with intellectual disability4 did not violate the Eighth Amendment's ban on cruel and unusual punishment.5 Thirteen years later, in Atkins v. Virginia, the Court changed its mind.6 How did Daryl Atkins get in the way of such good fortune?

After Penry, the claim that the execution of persons with intellectual disability violated the Constitution fell on deaf ears. On average, three persons a year with intellectual disability were executed until 2001,7 when the Supreme Court stunningly decided to address the question again.8 But the Court did not initially agree to rehear the question in Daryl Atkins's case; the Court granted a stay of execution, and then the petition for writ of certiorari, in McCarver v. North Carolina ,9 which raised the intellectual disability question.

Mr. Atkins was convicted of murder and sentenced to death in Virginia, but the Virginia Supreme Court ordered a resentencing proceeding. …

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