Convicted murderer Daryl Atkins will remain on death row for the time being while prosecutors appeal a judge's decision to commute his death sentence to life in prison.
York-Poquoson Circuit Judge Prentis Smiley granted special prosecutor Mark Krueger's motion Thursday to put a hold on the judge's Jan. 24 order commuting Atkins' sentence. A stay of the order's execution is required before the Virginia Supreme Court will hear a challenge to the judge's decision, prosecutors said.
Atkins, of Hampton, has been on death row for nearly 10 years for the August 1996 killing of 21-year-old Langley Airman Eric Nesbitt. His case prompted a 2002 U.S. Supreme Court decision barring executions of the mentally retarded. Atkins had been set for a retrial in April to determine whether he is mentally retarded.
After a Jan. 17 evidentiary hearing, Smiley threw out the death sentence, finding that prosecutors in Atkins' original 1998 murder trial had withheld information from his defense team in violation of U.S. Supreme Court decision Brady v. Maryland.
Prosecutors filed a motion less than two weeks later arguing the judge did not have authority to do that, and that the sole purpose of the hearing had been to determine whether York-Poquoson Commonwealth's Attorney Eileen Addison should act as prosecutor at the upcoming mental retardation proceeding.
Krueger and Melissa Hoy, both of the Chesterfield County Commonwealth's Attorney's office, have acted as special prosecutors in the case since the evidentiary hearings, where Addison was called as a witness to defend herself against the allegations that prosecutors withheld information.
Hoy said Thursday that they planned to immediately petition the Virginia Supreme Court and ask the justices to vacate Smiley's commutation order. In that type of proceeding, the judge is entitled to be advised by counsel, usually a member of the state Attorney General's office.
Atkins' defense Attorney Joseph Migliozzi objected to the stay Thursday, arguing that its only practical effect would be to prevent Atkins from being moved off of death row."It has a great effect on both the defendant and the Department of Corrections personnel," he said.