Prosecutors in Daryl Atkins' capital murder case are challenging a York County judge's order that commuted Atkins' death sentence to life in prison last month.
In a motion filed with the York-Poquoson Circuit Court this week, special prosecutor Mark Krueger requested a stay of Judge Prentis Smiley's order, alleging the judge didn't have the authority to modify Atkins' sentence.
Chesterfield County Commonwealth's Attorney's Office, said in the motion that he will be appealing to the Virginia Supreme Court for an order prohibiting the Circuit Court from commuting Atkins' death sentence.
Atkins, of Hampton, had been on death row for nearly 10 years for the August 1996 killing of 21-year-old Langley Airman Eric Nesbitt. His case made legal history by prompting a 2002 U.S. Supreme Court decision barring executions of the mentally retarded, and Atkins himself had been set for a retrial in April to decide if he is, in fact, mentally retarded.
Smiley commuted his death sentence after testimony during a pre-trial hearing that prosecutors withheld information from Atkins' defense attorneys during his original 1998 murder trial. Smiley found that details about an August 1997 interview with co-defendant William Jones could have been beneficial to Atkins' defense, and that prosecutors violated precedent set by the U.S. Supreme Court decision in Brady v. Maryland.
Krueger asserts in his motion that the only issue at hand in the pre-trial hearing was whether York-Poquoson Commonwealth's Attorney Eileen Addison should be disqualified from prosecuting at the upcoming mental retardation trial, because of the allegations against her.
Addison recused herself from the pretrial motions hearing, because they were about her conduct and she might have been a witness. That's when Krueger was appointed special prosecutor.
"The only pre-trial ruling the court could have made was whether or not a Brady violation necessitated that the York County Commonwealth's Attorney's Office be disqualified," the motion states.
Krueger also points to a September 2007 ruling from the Virginia Supreme Court dismissing Atkins' petition to consider problems with his 1998 murder trial, and refusing his appeal to determine the York-Poquoson Circuit Court's jurisdiction to hear those matters.
That ruling instructs the Circuit Court to move forward with the mental retardation trial and states that "such proceeding is confined to the terms of the mandate issued by the (Supreme) Court on October 18, 2006, remanding this case to the Circuit Court for a jury determination of whether Atkins is mentally retarded."
Krueger did not return calls for comment Wednesday.
Defense attorney Joseph Migliozzi would not comment on the motion, but said that his office planned to respond to the court within the next week.
A hearing on the motion is scheduled for Feb. 7 in York-Poquoson Circuit Court. Additional motions could be filed before that date.
ARCHIVE: Atkins death penalty reversal challenged
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