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Death row inmate found competent

His case had led to execution ban for the retarded

YORKTOWN, Va. -- 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 yesterday. A judge scheduled his execution for December.

Jurors deliberated 13 hours over two days before finding Daryl Atkins not mentally retarded.

Atkins, 27, flashed a peace sign to his family and blew a kiss as he was led from the courtroom after the verdict was read.

In a landmark decision, the US Supreme Court ruled in Atkins's 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.

If the jury had deemed Atkins retarded, he would have been spared execution and instead sentenced to life in prison for the robbery and slaying of an Air Force enlisted man over beer money.

''We never disagreed that he was probably a slow learner," York County prosecutor Eileen Addison said. ''That's not the same as being mentally retarded."

Lawyers for Atkins maintained that they had established their client's retardation. ''People in this community rejected that. We don't know why," attorney Richard Burr said.

During a court proceeding that the judge said was unique in judicial history, defense lawyers portrayed Atkins as so limited he was cut from the football team because he couldn't understand the plays.

The prosecution attributed his poor performance in school to drugs and alcohol, and said the claim of mental retardation was a ploy to avoid execution.

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 First Class Eric Nesbitt, 21.

Prosecutors said Atkins was the triggerman. A plea agreement was reached with Jones, who testified against Atkins and received a life sentence.

In a separate death penalty case, prosecutors in Missouri have opened a new investigation into whether the state executed an innocent man in 1995.

New information suggests that Larry Griffin, executed in 1995 for a drive-by killing in another case, may have been innocent, investigators said.

Griffin was quickly suspected in the drive-by killing of 19-year-old drug dealer Quintin Moss, who was shot 13 times. Revenge was the suspected motive in the 1980 slaying: Weeks earlier, Moss was believed to have killed Griffin's older brother.

The only witness testimony at Griffin's trial came from Robert Fitzgerald, a career criminal from Boston who was in St. Louis under the Federal Witness Protection Program. Fitzgerald died last year.

Michigan Law School professor Sam Gross, who spent a year investigating the case, said in his report that Fitzgerald ''developed a reputation as a snitch who couldn't produce convictions because Boston juries wouldn't believe him."

Gross cited two other factors that shed doubt on Griffin's guilt: The first police officer at the scene now says the story told by Fitzgerald was false. And a second shooting victim, who did not testify at trial, now says Fitzgerald was not present at the shooting.

The decision to reopen the Griffin investigation also has drawn attention to another Missouri case in which advocates believe an innocent man may have been put to death.

In the waning days before his 1999 execution for the murder of a prison guard, Roy Roberts demanded a polygraph test. Roberts passed but Governor Mel Carnahan refused to commute his sentence.

In 2000, a group opposed to the death penalty, Equal Justice USA, released a national report citing 16 potential cases of wrongful executions nationwide. Both Missouri cases are among them.

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