A jury convicted and recommended that Daryl Atkins be executed for the Aug. 16, 1996 murder of Eric Nesbitt on February 14, 1998.  Atkins and his friend, William Jones, were drinking and smoking crack at Atkins's home when they decided to walk to a nearby store to buy more beer.  At the parking lot of the store, Atkins told Jones that he did not have enough money and would panhandle to get the money for the beer; instead, Atkins and Jones abducted Eric Nesbitt and drove him to a field where Atkins allegedly shot and killed him.

During the investigation of the crime, Atkins made a statement to police where he claimed that Jones was the triggerman.  However, at trial, the jury found Atkins guilty of capital murder. During sentencing, the jury found both the future dangerousness and the vileness aggravating factors.  

In direct appeal to the Supreme Court of Virginia, counsel for Atkins raised nineteen claims. Although the court found that most of the claims were either procedurally defaulted or without merit, on Feb. 26, 1999, the court held that the use of an incorrect jury verdict form constituted reversible error with respect to the imposition of the death penalty. The court then affirmed Atkins's capital murder conviction but overturned the death sentence and remanded the case to the trial court for a new penalty proceeding.[i] 

During jury instructions at the penalty phase of the trial, prosecutors erred when they failed to disclose on the instruction form that absence of aggravating circumstances (future dangerousness AND vileness), the law REQUIRED that they sentence Adkins to life in prison without parole.  After a three-day sentencing hearing, a different jury re-sentenced Atkins to death in August, 1999; and a little over a year later in a 2-1 decision, the Supreme Court of Virginia upheld Adkins’ conviction.  Defense was arguing that the circuit court once again erred because they denied Adkins the right to present his mental retardation as mitigating evidence during the second penalty phase trial. At the time of the crime, Adkins had an IQ of 59.[ii]

In March 2000, Atkins' lawyers petitioned the U.S. Supreme Court to hear the case on the basis of pretrial intelligence tests that showed Adkins was retarded.  In a 6-3 ruling, the Supreme Court remanded the

Adkins case to the circuit court and ruled that executing mentally retarded felons was unconstitutional.  They left it up to Virginia to

determine whether Atkins is retarded or not. Pursuant to the high court’s decision, the Virginia Supreme Court ruled in June 2003 that a new jury would decide Adkins fate.

On Aug. 5, 2005, jurors in York County decided that Adkins was not mentally retarded. Virginia law defines mental retardation as someone with a score below 70 on a standardized IQ tests before the age of 18.  Adkins was not tested before 18 and registered subsequent scores of 59, 74 and and 76.[iii]

On June 8, 2005, the Virginia Supreme Court threw out Atkins’s death sentence and ordered a new competency trial.  The jurors who ruled that Atkins was not mentally retarded at the second trial had been told that Atkins had earlier been sentenced to death.