On August 5, 2005, a jury found that Daryl Atkins, convicted and sentenced to death for a 1996 crime, is not mentally retarded under Virginia's legal definition and may be executed. Atkins was sentenced to death for the 1996 kidnapping, robbing and murder of 21-year old Eric Nesbitt. In 2002, however, the Supreme Court ruled in Atkins v. Virginia that the death penalty may not be applied to the mentally retarded. The Court did not define mental retardation, but left the definition up to individual states to decide. After almost thirteen hours of deliberations, jurors determined that Atkins was not mentally retarded.

David Bruck of the Virginia Capital Case Clearinghouse and Roger Groot of Washington and Lee University School of Law question Virginia's decision to place the burden of proving mental retardation on defense attorneys, rather than prosecutors. According to Bruck, this distribution means that a jury finding of even evidence between the defense and prosecution will result in a finding for the prosecution and therefore execution.

Atkin's execution date has been set for December 12.

Compiled from: Atkins Lawyers to File Appeal, Keith Rushing, The Daily Press, Aug. 21, 2005; Va. Killer Isn't Retarded, Jury Says; Execution Set, Maria Glod, The Washington Post, Aug. 6, 2005.