Va. high court rules in death-sentence, state-lottery cases

Prosecutors yesterday lost a bid to restore a death sentence in a long-running case that led the U.S. Supreme Court to bar the execution of mentally retarded people.

In a 5-2 decision, the justices of the Virginia Supreme Court disagreed with prosecutors' contention that a York County judge lacked the authority to set aside Daryl Renard Atkins' death sentence and impose life in prison after finding there had been a serious trial error.

In a separate decision released yesterday, the Virginia justices held that Richmond Circuit Court Judge Margaret P. Spencer erred when she ruled that the Virginia Lottery does not fall under national and state acts on disabilities. The justices sent the case back to Spencer to determine how the lottery can ensure its activities are accessible to the handicapped.

Atkins, 31, was sentenced to die for the Aug. 17, 1996, murder of Eric Nesbitt, 21, an airman at Langley Air Force Base. Atkins claimed to be mentally retarded; in 2002, his case led the U.S. Supreme Court to bar the execution of people who are mentally retarded.

But the high court left it up to Virginia to decide whether Atkins was mentally retarded.

It was during the second attempt to do so that York-Poquoson Circuit Judge Prentis Smiley Jr., after hearing new evidence, ruled that prosecutors had improperly withheld evidence during Atkins' capital murder trial that "probably would have affected the outcome."

The Chesterfield County commonwealth's attorney's office, appointed special prosecutor in the case, said the matter was sent back to Smiley to retry only the issue of whether Atkins is mentally retarded.

John A. Gibney, lawyer for Smiley, who died last year, countered that Smiley clearly had the power to set aside the death sentence after finding that Atkins' conviction was flawed. Yesterday, the Virginia Supreme Court agreed.

York County Commonwealth's Attorney Eileen M. Addison did not return calls yesterday.

"We are very happy" with the ruling, Gibney said.

In the lottery case, four handicapped people filed suit in 2005 contending they were denied equal access to lottery games in violation of disabilities acts. The lottery argued that it is not responsible for making sure that private retailers are accessible.

Yesterday, the justices ruled "it is correct that the Virginia Lottery has no power to make physical changes to the lottery retailers' premises or to control the day-to-day operations of the retailers. However, this does not absolve the Virginia Lottery of its obligations."

The justices added that the lottery "is responsible for its own violations in failing to provide disabled persons access to the Virginia Lottery's programs and activities." But, the opinion said, "there is no legal requirement regarding how this must be accomplished."

For instance, the court said, access to games might be granted by means other than physical access to retailers. The justices sent the matter back to circuit court.

Colleen Miller, executive director of the Virginia Office for Protection and Advocacy, said: "We're obviously very pleased with the result, and we look forward to working with the lottery to make sure they provide equal access to all Virginians."

Miller said she hoped the two sides could work out the issues without further court involvement.

Paula I. Otto, executive director of the lottery, said the lottery is supportive of the rights of Virginians with disabilities and both the Americans with Disabilities Act and the Virginians with Disabilities Act.

"We are pleased that the Supreme Court agrees that it is not within the lottery's authority to require a private business to be ADA-and VDA-compliant," she said.

"Now . . . the question will be whether the lottery is ensuring that lottery play is available to all Virginians," she added.

Otto said she is confident the lottery is doing so. Miller, however, said she is confident it will be shown the lottery is not.

Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.