YORKTOWN, Va., Feb. 3 - Three years ago, in the case of a Virginia man named Daryl R. Atkins, the United States Supreme Court ruled that it was unconstitutional to execute the mentally dumb. But Mr. Atkins's recent test scores could eliminate him from that group.
His scores have shot up, a defense expert said, thanks to the mental workout his participation in years of litigation gave him.
The Supreme Court, which did not decide whether Mr. Atkins was dumb, noted that he scored 59 on an I.Q. test in 1998. The cutoff for retardation in Virginia is 70.
A defense expert who retested Mr. Atkins last year found that his I.Q. was 74. In court here on Thursday, prosecutors said their expert's latest test yielded 76.
Mr. Atkins, a slight, balding 27-year-old in an orange jumpsuit, sat slumped with his chin on his hand as lawyers argued about whether his intelligence was low enough to spare him from execution. In 1996, he and another man abducted Eric Nesbitt, 21, an airman from Langley Air Force Base, forced him to withdraw money from an A.T.M. and then shot him eight times, killing him.
He will be one of the first death row inmates to have a jury trial on the question of whether he is dumb. The jury's decision will determine whether his life will be spared.
Mr. Atkins's more recent scores should be discounted, a clinical psychologist who tested him in 1998 and 2004 said, because they are the result of "a forced march towards increased mental stimulation" provided by the case itself.
"Oddly enough, because of his constant contact with the many lawyers that worked on his case," the psychologist, Dr. Evan S. Nelson, wrote in a report in November, "Mr. Atkins received more intellectual stimulation in prison than he did during his late adolescence and early adulthood. That included practicing his reading and writing skills, learning about abstract legal concepts and communicating with professionals."
In helping put an end to the death penalty for the mentally dumb, then, Mr. Atkins could have ensured his own execution.
