It has taken by Virginia attorney Leslie P. Smith has finally got something off his chest. Smith was counsel a decade ago for a cooperating witness, William Jones, who wanted to avoid the death penalty for a murder by fingering his co-defendant, Daryl R. Atkins. Atkins got tagged for the murder and the death penalty. However, Smith remained silent about a major problem: he allegedly watched prosecutors coach and conform Jones’ testimony, which was fatally flawed. Now there is a major ethical battle running concurrently with the ongoing battle over putting Atkins to death.
Jones and Atkins were guilty of Eric Nesbitt in August 1996, a crimes partially captured on a bank video camera near an ATM as they drove with the victim.
The Atkins case is already something for the history books after the United States Supreme Court ruled in 2002 that states could not execute the mentally retarded. The case, however, continued as prosecutors argued that Atkins was not technically mentally retarded.
Throughout the decade of litigation, Smith bit his tongue. He was told by the state ethics board that he could not ethically reveal what he saw in the interrogation room because it could endanger Jones’ deal. The New York Times reported:
Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine.The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.
“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”
The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith.For 15 minutes, Mr. Smith said, prosecutors coaxed and coached Mr. Jones to produce testimony against Mr. Atkins that did match the evidence. They flipped over a table and pretended it was a truck. “We used a chair, or something like that, to simulate the open door,” Mr. Smith testified, “because only one of the doors on the truck would open.”When the tape was turned back on, Mr. Jones’s story bolstered the case against Mr. Atkins as the triggerman.
The commonwealth’s attorney for York County, Eileen M. Addison, has issued a statement basically calling Atkins a liar while Krinick has stayed silent. Bolstering Atkins’ claims, however, is a mysterious 15 minute gap in the length of the taped interrogation.
Atkins was finally released to tell his story by a state ethics official, who reportedly refused to give him a written letter and insisted on telling him orally that he could speak. Hopefully, this bizarre approach to ethical consultation will be explored by the state board. It is entirely unclear why an ethics official would insist on such conditions in answering a question.
In the meantime, Addison is trying to get the court to toss out the prosecutorial misconduct inquiry on technical grounds. Addison’s reaction appears entirely hostile to any consideration of the matter rather than seeking an independent forum for review of the allegations. Atkins told one other attorney through the years about his allegations and appears quite credible.
As discussed with regard to the Masters case and prior prosecutorial misconduct here, prosecutorial misconduct tends not to result in punishment for the prosecutors because the violations are disclosed years later. Even after spending years in litigation and undoing a conviction, the public rarely blames prosecutors or police for being “too aggressive” or “overzealous.”
For the full story on Atkins, click here