For a decade, detail in death-row case haunted Virginia lawyer

Email|Print| Text size + By Donna St. George
Washington Post / January 23, 2008

YORKTOWN, Va. - Leslie Smith brooded over what he knew for a decade: information that might spare the life of an inmate on Virginia's death row. Smith, a lawyer, had thought about disclosing it long ago. But in 1998, he had been told not to jeopardize the interests of his client.

The case he could not forget was that of Daryl Atkins, who was convicted in a carjacking murder in York County, Va., and whose appeals spurred the US Supreme Court to a landmark ruling that banned executions of mentally retarded inmates. Atkins remained on death row in spite of the historic decision, his own mental limitations still under debate.

All the while, there was Smith, a solo practitioner in Hampton, sometimes pondering his vow of silence. He had been the lawyer for Atkins's codefendant. And what he felt he knew was this: His client had been coached in his testimony to help ensure that Atkins got the death penalty.

Last spring, Smith, 64, unexpectedly decided to raise the issue again, writing a letter to the Virginia Bar. This time, he was urged to tell what he knew, he testified in court. And the outcome of that revelation came Thursday evening: Atkins's sentence was commuted to life in prison, bringing apparent finality to a case that has bounced from court to court for a decade.

In the end, it seemed one man's disclosure had changed everything. Many lauded Smith for coming forward; others asked why he waited so long.

To some, Smith might seem an unlikely man for the spotlight. After the ruling was handed down, he left the courthouse without comment. A day later, he was working in his office in Hampton, even though it was a state holiday. Not a showman, not a tough talker, Smith has practiced law 37 years. Other lawyers describe him as honest, forthright.

"What he did was extraordinary, and he wrestled with it a long time," said Ron Smith, a Hampton lawyer who has known him 20 years and who is not related to Smith.

Atkins and William A. Jones were charged with killing Airman Class Eric Nesbitt, a 21-year-old Air Force mechanic. They both ultimately admitted their roles, but each said the other did the shooting. In Virginia, only the triggerman can be given the death penalty.

The episode that Leslie Smith found so troubling - and kept a secret - goes back to the first interview prosecutors had with his client, Jones, on Aug. 6, 1997. Prosecutors wanted to use Jones's statement to convict Atkins and ask for a death sentence. They offered to drop several charges against Jones if he proved to be a credible witness.

But, according to court testimony, the interview went awry. Jones's statements about what happened were at odds with the forensic evidence. Smith testified that law enforcement officials then coaxed his client to give answers that would fit the facts.

Smith said he called Timothy Clancy, the lead lawyer in the Jones case, soon after the interview to discuss how to proceed. He wrote a memo about the events. Clancy then asked a local judge for advice and ultimately called the Virginia Bar.

The bar's advice, he testified, was that a lawyer's first obligation was to his client. Nearly 10 years later, Smith told the court that he believed the ethical problem was not what had happened but that it had not been divulged to the other side and could not be used at trial. "I felt that the law is kind of like professional golf," he testified. "You have to trust everybody else to follow the rules, and you have to be willing to call penalties on yourself because we have to trust one another."

The victim's familyexpressed disappointment that Atkins would be spared a death sentence. "We want to see him executed," Dan Sloan, Nesbitt's stepfather, said.

Others were troubled that Atkins has spent a decade on death row, and wondered why Smith had not stepped up after Jones's sentence was made final in 1998.

Carmen Taylor, president of the Hampton branch of the NAACP, said: "How can you sleep at night for 10 years? It takes 10 years for your conscience to kick in?"

These kinds of issues are not uncommon during the deal-making process with prosecutors, said Corinne Magee, a former prosecutor who is now a board member of the Virginia Association of Criminal Defense Lawyers.

In Virginia, state law adds to the problem, Magee said.

"We have such limited discovery in Virginia as defense counsel that these kinds of issues are continuously emerging," she said.

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