There is no fail-safe in the death penalty

Nearly a dozen years after participating in a murder, after IQ tests showed he was mentally retarded, after his case went to the U.S. Supreme Court and changed the nation’s death penalty practices, after his execution was set for 2005, Daryl Atkins finally got the sentence he deserved: mandatory life in prison.

A York-Poquoson circuit judge commuted Atkins’ death sentence, ruling last week that prosecutors had withheld evidence from a jury that might have kept Atkins off death row. The decision had nothing to do with the long-running debate over Atkins’ degree of mental impairment. It was about what’s fair and what isn’t.

Atkins and the other man accused in the 1996 murder of Airman 1st Class Eric Nesbitt each said the other pulled the trigger. When the other man gave a statement that conflicted with forensic evidence, somebody turned off the tape recorder, and prosecutors coached the man to change his statement. An audio expert said 16 minutes of tape were missing from the recording of the statement that implicated Atkins, but no one told Atkins’ lawyer.

Atkins benefited from the willingness of two people — a defense lawyer and a judge — to right that wrong. The lawyer for the co-defendant, Leslie Smith of Hampton, went to the State Bar, the agency that regulates the legal profession, shortly after the interview with his client. He wondered whether he should tell Atkins’ lawyer about the coaching, which had helped ensure that Atkins got the death penalty. The Bar’s response: Smith’s first obligation was to his client, and telling Atkins’ attorney about the coaching might jeopardize Smith’s client. Last year Smith again went to the Bar with the information he thought might spare Atkins’ life. This time Bar officials told him to tell a judge.

The case went back to Judge Prentis Smiley Jr., who had presided over Atkins’ earlier trials .

Smiley was troubled by Smith’s testimony about the coaching. “There was favorable, potential impeachable evidence possessed by the commonwealth,” he said, ordering Atkins’ death sentence commuted to life in prison.

The good news is that the system worked in this case. It took more than a decade, as it sometimes must, but Smith and Smiley recognized an error and corrected it before Atkins was executed.

That’s the saving grace about a life sentence. It takes away a person’s freedom and keeps society safe while allowing for the possibility that somebody made a mistake in the finding of guilt or in the sentencing.

Mistakes happen. On Tuesday in Colorado, a man serving a life sentence for a 1987 murder walked out of prison after DNA tests pointed to another suspect. Defense lawyers and special prosecutors said crucial information was withheld from the man’s trial lawyers.

Such cases are popping up all over the country. Last year New Jersey replaced its death penalty with mandatory life in prison. Other states, including Florida, have executions on hold while the Supreme Court decides on lethal injections.

Humans make mistakes. The criminal justice system sometimes gets it wrong. Daryl Atkins’ case is one more reminder that our system is fallible. The only way to ensure that we don’t kill someone in error is to not kill at all.