Atkins Case Update
Following the circuit court’s January 17, 2008, determination that the prosecution had violated the disclosure rules established in Brady v. Maryland (1963), Judge Prentis Smiley commuted the death sentence of Daryl Atkins to life in prison without parole. He issued his formal order on January 24, 2008. Attorneys representing the Commonwealth of Virginia took strong exception to this action, believing that Judge Smiley had exceeded his lawful discretion. Special prosecutor Mark Krueger served notice that the Commonwealth would challenge the sentence modification. In response, Judge Smiley delayed implementation of his order until the completion of any appellate proceedings.
True to his word, Krueger took his case to the Supreme Court of Virginia on February 21, 2008. Because a direct appeal of Judge Smiley order was not possible, Krueger selected an alternative route to present his challenge to the justices. He submitted two petitions, one for a writ of mandamus (In Re Commonwealth of Virginia, case #080282) and the other for a writ of prohibition (In Re Commonwealth of Virginia, case #080283).
The writ of mandamus (“We command,” from the Latin) has its origins in English common law. It is an order from a superior court commanding a lower court or a government official to perform a legally required, ministerial duty. A writ of prohibition is an order from a superior court to bar a lower court from taking action on a case. Usually a writ of prohibition is reserved for situations where the lower court (or the judge sitting on the lower court) does not have the jurisdiction or authority to hear a case. Under Virginia law, the state supreme court has original jurisdiction over petitions for writs of mandamus and prohibition.
Krueger’s petitions asked the state supreme court to command Judge Smiley to vacate his pretrial order reducing Atkins’s death sentence and to prohibit him from entering any similar order in absence of a jury finding that Atkins is retarded. He further asked the justices to command Smiley to conduct a second retardation hearing.
Krueger argued that Judge Smiley lacked the authority to alter Atkins’s sentence. On September 20, 2007, the Virginia Supreme Court directed the circuit court to “proceed with the criminal case. Such proceeding is confined to the terms of the mandate issued by the Court on October 18, 2006, remanding the case to the circuit court for a jury determination of whether Atkins is mentally retarded.” This order, Krueger argued, limited the circuit court’s authority to the retardation question. It did not permit Judge Smiley to revisit the original conviction that took place a decade earlier. If Smiley determined that the Commonwealth’s Attorney violated Brady at an earlier stage of the process, the appropriate remedy, consistent with the supreme court’s mandate, would be to disqualify Eileen Addison from representing the Commonwealth at the second retardation hearing, not to alter the original sentence. Thus, Smiley had failed to carry out his obligation to conduct a retardation hearing and had exceeded his authority by reducing Atkins’s sentence.
Judge Smiley’s position was represented by John A. Gibney, Jr., a Richmond lawyer with a specialty in advising local governments and state constitutional officers. Gibney urged the state supreme court to reject Krueger’s petitions. Gibney rested his argument on several claims. First, he said that a writ of prohibition only applies when a court lacks jurisdiction to act. Such was not the case here. The state supreme court’s order to conduct the retardation hearing did not strip Smiley of his more general authority over the criminal proceedings against Daryl Atkins. Second, Gibney argued that a writ of prohibition is an order to prohibit a judge from committing a future act, not to undo an already completed act. Third, a writ of mandamus is designed to compel a public official to carry out a legally required, ministerial act. It is not to be used to force a judge to make an otherwise discretionary ruling. Fourth, Krueger was inappropriately using the writ of mandamus and prohibition to circumvent the limitations on a direct appeal. And finally, Gibney claimed that once the death penalty was vacated there no longer was any need to conduct the second retardation trial. On February 21, 2008, Gibney moved that the justices dismiss Krueger’s petitions.
In addition to the briefs submitted by Krueger and Gibney, Joseph Migliozzi, assisted by Washington attorney Stephen Brody, submitted an amicus curiae brief on behalf of Daryl Atkins. Migliozzi’s arguments generally echoed the positions advanced by Gibney, but he also emphasized that the Brady violation was an egregious error and that Judge Smiley had properly vacated the death sentence in response.
The Virginia Supreme Court was not quick to respond to the parties’ briefs. The participants in the Atkins case waited eleven months before receiving any word from the justices. Then, on January 22, 2009, the Court announced that it had decided to give the mandamus and prohibition questions a full hearing. Oral arguments were scheduled for February 24.
Sadly, Judge Prentis Smiley would not live to see the Virginia Supreme Court’s decision. On December 25, 2008, at age 70 Judge Smiley passed away, losing a long battle with cancer. He had served as judge of the York/Poquoson circuit court for thirteen years.
On Tuesday, February 24, 2009, the attorneys for both sides entered the large courtroom in the Virginia Supreme Court building in Richmond. At 9:12 a.m. Chief Justice Leroy Rountree Hassell called up the case of In Re Commonwealth of Virginia. The writ of prohibition and the writ of mandamus petitions were consolidated into a single oral argument session.
The courtroom was crowded with spectators who had come to see state’s highest court once again confront questions arising from the Atkins case. Several individuals who had participated at earlier stages were present, including Joseph Migliozzi, the Capital Defender, and Benjamin Hahn, who had assisted prosecutor Eileen Addison throughout the trial court stages.
Each side was given thirty minutes to present its case and respond to questions from the seven justices. Melissa Hoy, the special prosecutor from Chesterfield County who, with Mark Krueger, had defended the Commonwealth’s Attorney in the prosecutorial misconduct hearing, was the first to stand before the justices. Hoy represented the prosecution, arguing that Judge Smiley had exceeded his authority in commuting Daryl Atkins’s sentence to life in prison. She was followed by John Gibney, the Richmond attorney who had been retained to represent Judge Smiley’s position. Both Hoy and Gibney used their time before the justices to emphasize the points they previously had made in their written briefs.
Each advocate was peppered with questions from the justices. The members of the Court focused on the issue of jurisdiction. Did Judge Smiley have the authority to commute Daryl Atkins’s death sentence? Hoy argued that Smiley was limited by the order of the Virginia Supreme Court to conduct a second retardation trial for Atkins. The guilt and sentencing phases of the case were long since finalized, and Judge Smiley acted improperly by revisiting those stages and ignoring the order for a second retardation trial.
Gibney defended Judge Smiley’s ruling. The Virginia Supreme Court’s order to conduct a second retardation trial did not, in Gibney’s view, strip the circuit court of its jurisdiction over the underlying murder case. Rather, Smiley was within his authority to consider the prosecutorial misconduct charges that dated back to the original trial and sentencing. In addition, once he found that a Brady violation had occurred, Smiley was well within his proper discretion to reduce the death sentence to life in prison as an appropriate remedy.
As the oral arguments ended, Daryl Atkins’s fate was once again in the hands of the judiciary. After deliberating, the justices would likely choose between two alternatives: (1) sustaining Judge Smiley’s revised sentence of life in prison; or (2) vacating Smiley’s ruling and ordering a new circuit judge to conduct another retardation trial.
Over the next several months the justices deliberated over the case. In the interim, Joseph Migliozzi, who had represented Atkins at the retardation trial and the Brady violation hearing, was sworn in as a new Virginia District Court judge in Norfolk.
On June 4, 2009, the Virginia Supreme Court announced its decision in the case of In Re Commonwealth. By a 5-2 vote, the justices rejected the prosecution's petitions for a writ of mandamus and a writ of prohibition.
The decision was a life-saving victory for Daryl Atkins.
Chief Justice Leroy Rountree Hassell, Sr., issued the opinion of the Court. His views were joined by Justices Lawrence Koontz, Barbara Keenan, S. Bernard Goodwyn, and LeRoy Millette.
The Court held that Judge Smiley had the authority to rule on the Brady violation question and, having found that a Brady violation had occurred, to reduce Atkins's sentence to life in prison without parole. That the Virginia Supreme Court had commanded the circuit court to conduct a retardation trial did not limit Judge Smiley's general jurisdiction over the case. "We hold," the chief justice wrote, "that a circuit court presiding during a remand of a capital murder proceeding retains authority and discretion to resolve legal issues that the litigants raise. A contrary holding would disrupt and impair the circuit court's authority to preside during a remand of a criminal proceeding."
Hassell's opinion stressed that the writs of mandamus and prohibition are extraordinary remedies only to be employed in special circumstances. Here, according the majority, the Commonwealth was attempting inappropriately to use mandamus and prohibition as substitutes for an appeal where Virginia law provided no right to appeal.
Additionally, Hassell explained that the writ of mandamus is a judicial command to a government official to carry out a required ministerial duty and that the purpose of a writ of prohibition is to stop a public official from engaging in a particular action. Both are designed to order a public official, a judge in this case, to do or refrain from doing some action. Here, the Commonwealth was asking the Supreme Court to use these extraordinary remedies to undue something that had already been done, an action inconsistent with the purposes of these writs.
The majority therefore dismissed the Commonwealth's petitions for a writ of mandamus and a writ of prohibition. The effect of this decision was to affirm Judge Smiley's commutation of Daryl Atkins's death sentence to life in prison without parole.
Justice Cynthia Kinser wrote a long and detailed dissenting opinion, which was joined by Justice Donald Lemons.
Kinser argued that Smiley lacked the authority to rule on the Brady violation charge. Smiley had received two mandates from the Virginia Supreme Court ordering him to reconvene the Atkins case for the sole purpose of conducting a retardation trial. Those mandates limited Smiley's jurisdiction to the single issue of retardation. Smiley had no discretion to ignore those mandates.
Alternative avenues for the consideration of the defense's claim of a Brady violation were available. "Given the procedural status of Atkins' capital murder case," Kinser wrote, "a petition for a writ of habeas corpus is the appropriate vehicle to address the merits of Atkins' motion alleging Brady violations by the Commonwealth."
Kinser took strong issue with the majority's position that writs of mandamus and prohibition could not be used to undue an already completed act. She canvassed the Court's prior rulings and found several instances where such writs were used in this manner. Furthermore, she argued, because the Commonwealth had no right under Virginia law to appeal Smiley's decision, the writs of mandamus and prohibition were the only remedies available. These writs, she noted, were especially appropriate to enforce compliance when a lower court refuses to obey a Supreme Court mandate.
The Virginia Supreme Court's decision effectively ended the Atkins case. No longer would Daryl Atkins face the prospects of an execution. After spending a decade on death row, Atkins would now be released into the general prison population where he will spend the rest of his life for the murder of Eric Nesbitt.