An attorney involved in Daryl Atkins 1998 capital murder trial testified at a motions hearing Thursday that prosecutors were "coaxing or leading" a key witness against Atkins to make his testimony more in line with forensic evidence in the case.
Leslie Smith, who represented co-defendant William Jones, told the court of an August 1997 interview at the Virginia Peninsula Regional Jail in which York-Poquoson Commonwealth's Attorney Eileen Addison and special prosecutor Cathy Krinick discussed with Jones specifics of the Aug. 16, 1996, slaying of Langley Airman Eric Nesbitt.
"As he began to discuss the positions of the individuals and the firing of shots, Ms. Krinick reached over and stopped the tape recorder," Smith said. "She made a statement - 'Les, do we see we've got a problem here?' She then said, 'This isn't going to do us any good.'"
Smith said that with the recorder off, the group flipped over a table in the interview room to simulate a truck at the crime scene, and Krinick had Jones "act out" the positions of each individual. When the recorder was switched back on, Jones gave a different version of the events. Krinick also said she didn't want any more taped interviews with Jones because she didn't want to have to turn over information that could help Atkins' defense attorney, Smith testified.
Smith said he left the meeting and immediately contacted co-counsel Timothy Clancy about what had occurred.
Clancy testified that he later contacted a local judge and the state bar ethics committee about whether they should reveal the information to Atkins' attorney and was told that it was not his obligation.
"Law is kind of like professional golf - you have to trust everyone else to follow the rules," Smith said Thursday.
Atkins was convicted in February 1998 of Nesbitt's murder and sentenced to death. Smith came forward earlier this year with information about the 1997 interview. After nearly 10 years of appeals, Thursday's hearing came on a defense motion for a new trial or commutation of that sentence to life in prison, based on allegations that prosecutors withheld evidence and introduced false testimony against Atkins.
York-Poquoson Circuit Judge Prentis Smiley said Thursday a new trial is off the table and "would be a waste of everyone's time."
The defense rested Thursday after calling an expert in forensic audio analysis who testified that the tape had been shut off, and Atkins' 1998 attorney, George Rogers, who testified that the withheld information would have changed the way he tried the case. Prosecutors will present their side at a second pre-trial motions hearing Jan. 17, 2008.
Two attorneys from the Chesterfield County Commonwealth Attorney's Office are acting as special prosecutors after Addison recused her office from the case because of the misconduct allegations.
Aug. 16, 1996 - Langley Airman Eric Nesbitt is abducted outside a Hampton convenience store, forced to withdraw money from an ATM and then shot to death on a desolate road in York County.
February 1998 - Hampton resident Daryl Atkins is convicted of Nesbitt's murder. A jury recommends a death sentence, despite evidence offered by the defense that Atkins is mentally retarded. A few months later, Judge Prentis Smiley affirms that sentence and sets an execution date.
January 1999 - The Virginia Supreme Court overturns Atkins' death sentence because of an error made on a jury verdict form.
August 1999 - A second York County jury is convened to reconsider the Atkins sentence. They also recommend death, and Atkins is again set to die.
June 2002 - An appeal in Atkins' case makes it to the U.S. Supreme Court, which rules it is unconstitutional to execute the mentally retarded. The Supreme Court leaves it up to states to define mental retardation.
June 2003 - The Virginia Supreme Court sends the case back to York County, ordering a jury to determine whether Atkins is mentally retarded.
August 2005 - A York County jury finds that Atkins is not mentally retarded and can be executed.
June 2006 - The Virginia Supreme Court overturns the jury verdict, citing errors made during the trial. A new trial is ordered to determine whether Atkins is mentally retarded.
June 2007 - Atkins' attorneys allege prosecutors withheld information during his initial trial in 1998 and petition the Virginia Supreme Court to decide whether York County has the jurisdiction to grant a new trial or commute Atkins death sentence.
September 2007 - The Virginia Supreme Court dismisses the petition and instructs York County to go forward with a trial on the mental retardation issue.
Oct. 16, 2007 - Proceedings to determine whether Atkins is mentally retarded are set for April 2008. Two hearings on pretrial motions concerning prosecutorial misconduct, one for December and another in January, also are set.