Fate of retarded inmate could rest in high court

Wednesday, March 28, 2001 | 9:49 a.m.

CARSON CITY -- Next month Thomas Nevius, who sits on death row at the state prison in Ely, turns 49, but psychologists say he has the mental capacity of a boy of 8.

His case is now taking on increasing prominence. The U.S. Supreme Court has agreed to consider a North Carolina case and decide whether a mentally retarded man can be executed.

And the state Assembly Judiciary Committee was to take testimony today on a bill that would bar mentally retarded killers from being put to death.

Nevius' execution has been scheduled at least three times. He has pursued four rounds of appeals in the state courts and two rounds in the federal court system. He has yet to win, but the state Pardons Board has scheduled a hearing April 11 on whether to grant clemency.

Lawyers for Nevius are asking for mercy on grounds he is mentally retarded and suffered from that condition when he gunned down a Las Vegas man while escaping from a burglary in 1980.

Michael Pescetta, a federal public defender, says the jury in Nevius' trial was not presented with evidence of mental retardation. He says two jurors now say they would not have imposed the death penalty had they known.

Letters are starting to flow in asking the Pardons Board to commute his sentence. The Swedish embassy in Washington, D.C., for example, said the execution of mentally retarded persons conflicts with the minimum standards for human rights.

Chief Deputy Criminal Attorney General David Sarnowski said this is the first time in all the appeals that Nevius ever raised the issue of his mental retardation.

"The time has long since passed for Nevius to present new issues," Sarnowski said.

David Roger, chief deputy district attorney for Clark County, is handling the case for the state. He said a prison psychiatrist examined Nevius this week but has not yet released his evaluation.

In July 1980 Nevius, his half-brother David, Greg Everett and Art Tiger were drinking vodka and using various drugs including Quaaludes and marijuana in Las Vegas. And the four decided to burglarize a home. They entered the apartment of David and Rochelle Kinnamon. David was at work and Rochelle was alone. Two of the men ransacked the apartment, and Nevius and another man tried to sexually assault the wife.

David returned home to interrupt the burglary and sexual attack. The four men fled out a window and four shots were fired at the husband. David died from a bullet wound in the brain. Nevius was identified as the shooter.

Everett received a life term without possibility of parole. Tiger got a life sentence and probably won't be eligible for parole until at least 2020. David, the half-brother, pleaded guilty to voluntary manslaughter and received probation. After the crime, David admitted to his father, Sonny Nevius, that he had taken part in the offense and gave the father the gun that was used to kill Kinnamon. He identified Thomas Nevius as the shooter.

And the prosecution described Nevius as the ringleader and the mastermind of the failed burglary attempts.

Rochelle Kinnamon died several years ago, but the son and daughter of David Kinnamon intend to testify before the Pardons Board.

Nevius has been examined by two defense experts -- David Schmidt, a clinical neuropsychologist at UNLV and Denis Keys, an associate professor of special education at the University of Charleston in South Carolina. They paint a dismal picture of his childhood.

His mother, said Keys, was "less than reliable" and used her welfare money to buy liquor rather than food for her children. Nevius had early learning problems, and he changed schools five times in three years as the family moved to different locations in New York City and then to Philadelphia. He quit school at the eighth grade and had an IQ score of 64, which increased to 77 the following year.

At age 14 he hooked up with the Camac and Butler Gang in North Philadelphia.

In 1971 David Dyches, a member of the rival Mighties gang, was shot to death. Nevius surrendered and was sent to prison for youthful offenders, where he spent more than four years. His family visited him only once.

In 1976 he was released to a halfway house and lived there for 18 months before he walked away.

In 1977 or 1978 he moved to Las Vegas to join his father Sonny.

Nevius worked at the Las Vegas Convention Center, but there were periodic layoffs. After the shooting, Nevius left Las Vegas for California and then moved back to Philadelphia.

He was arrested on a fluke. A child of a family that he was living with in Philadelphia was kidnapped and murdered in August 1981. Nevius, according to Keys' report, discovered her clothing and alerted police. But he was questioned by police, who ran a check and found he was wanted in Las Vegas.

In his report, Keys said, "Thomas's mental capacities, as indicated by the complete battery of psychological tests administered, place him at or below the lowest 1 percent of the population. Thomas is unaware even today of the nature of the death penalty."

Schmidt says Nevius is "mildly mentally retarded but more importantly, he is brain damaged and in the mentally retarded range of mental functioning. He reads at second grade level and is functionally illiterate so he cannot review the written material in his case."

"Nevius is a model prisoner and executing him is not necessary to protect the prison staff or the public," said Schmidt, who added that the inmate has had only minor prison violations.

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