Defense is temporary insanity

A 33-year-old man accused of murdering his estranged wife last year by running over her in front of their children hopes in a trial that began Monday to convince a judge he had diminished mental capacity at the time of the killing.

Spokane County’s top criminal prosecutors hope to convince Superior Court Judge Robert Austin that Richard A. Atkinson not only is guilty of first-degree murder, but deserves extra punishment for killing 29-year-old Andrea Atkinson in front of the couple’s young children.

Atkinson chose a bench trial in which Austin assumed the role of jury as well as judge.

Atkinson’s defense is based on the assertion that he was, in effect, temporarily insane because a combination of pre-existing post-traumatic stress disorder, alcohol and drugs prevented him from forming the intent to commit the crime. Three police officers testified on Monday that they saw no evidence that Atkinson was under the influence of drugs or alcohol.

Before testimony got under way Monday afternoon, Austin opened the door to an above-standard sentence by ruling that the Legislature’s repair this spring of the state’s sentencing guideline law was retroactive to the April 2004 homicide of 29-year-old Andrea Atkinson.

Until the amendment took effect April 15, trial judges had been virtually unable to impose above-standard sentences because of a U.S. Supreme Court decision last summer.

Assistant Public Defender John Whaley argued unsuccessfully that the amendment shouldn’t apply to Atkinson because he was charged 11 months before the amendment took effect. But amendments that change procedures instead of substantive points of law generally are retroactive.

Whaley is being assisted by his boss, Public Defender John Rodgers; Chief Criminal Deputy Prosecutor Jack Driscoll is being assisted by Prosecutor Steve Tucker.

The U.S. Supreme Court struck down the part of Washington’s sentencing guidelines that allowed judges to determine whether aggravating circumstances warranted extra punishment. Only juries can make such findings unless a defendant agrees to let a judge do so, as Atkinson did after losing the battle over retroactivity.

The amended guidelines spell out aggravating factors that prosecutors may charge, and domestic violence in front of a victim’s minor children is one of them. If Atkinson gets a standard-range sentence, he faces about 30 years in prison if convicted of all five charges against him.

In addition to first-degree murder, Atkinson is charged with three counts of second-degree assault for allegedly ramming the van in which his and his wife’s three children – ages 3, 4 and 6 at the time – were riding. He also is charged with reckless endangerment for jeopardizing the safety of his then-9-year-old daughter from a previous relationship.

According to court documents, Atkinson asked the 9-year-old whether she could forgive him if he killed his wife. Authorities say the girl was riding with her father, pleading with him to stop, when he knocked Andrea Atkinson down with his van and then backed up to run over her in the front yard of her home at 304 E. Princeton.

Court documents say Andrea Atkinson had just finished pushing her children to safety when she was killed.

Spokane resident Pennie Buntrock testified Monday that she was waiting to turn south on Lidgerwood from Wellesley when two aggressively driven, southbound vans ran a red light to cross in front of her.

A white van repeatedly rammed the blue one in front of it, she said. Police said the white van was driven by Richard Atkinson and the blue one by his estranged wife.

When the blue van veered off the road near the corner of Lidgerwood and Princeton, the white van passed it and then came back to ram it, Buntrock testified.

Then, she said, the white van backed up again and jumped the curb. The next thing she saw, while dialing 911, was a group of people chasing Atkinson.

Police said the pursuers caught Atkinson in the 200 block of East Wellesley and held him until they arrived.