Tuesday, Nov. 12, 2002 | 11:12 a.m.
CARSON CITY -- Two-time killer Thomas Nevius is scheduled to go before the state Pardons Board next week to learn whether his death sentence will be commuted because he is mentally retarded.
The U.S. Supreme Court ruled in June that executing mentally retarded persons is cruel and unusual punishment. But Keith Munro, general counsel to Gov. Kenny Guinn, said the court left it up to the states to decide the standard on mental retardation.
Nevius went before the Pardons Board, headed by Guinn, in April 2001 to get the sentence commuted, but the governor asked for independent examinations on the mental state of Nevius, 46, who was convicted in 1984 of a murder in Las Vegas.
The board, composed of the governor, attorney general and seven justices of the Nevada Supreme Court, will review the results of those examinations when it convenes Nov. 20.
Generally, a person with an IQ of 70 or below is considered mentally retarded.
The reports of the three psychologists who examined Nevius October 2001 agree that tests show a case of "mild mental retardation" in Nevius. His IQ scores fell between 72 and 75, according to court documents filed in advance of the hearing. Those were higher than defense attorneys suggested last year, when they presented scores below 70.
The psychologists -- Jeffrey Kern, Donald Jackson and Elizabeth Neighbors -- suggested that Nevius' mental functions are equivalent to those of a boy 11 1/2 to 12 years old. He reads at a first or second grade level, the psychologists said, but cannot write legibly.
Their reports describe Nevius as someone who spends his time watching television and listening to music, and who likes watching sports, particularly the Dallas Cowboys. But he has to rely on fellow inmates to write notes to prison administrators or letters to the outside.
Jackson, director of psychological services at Sierra Regional Center in Sparks, said people with mild mental retardation can achieve social and vocational skills for minimal self-support but may need supervision, guidance and assistance in life.
"With appropriate supports, individuals with mild mental retardation can usually live successfully in the community, either independently or in supervised settings," Jackson said.
In 1978, two years before the murder that got him the death penalty, Nevius fathered a son. Kern, a clinical psychologist at the department of psychology at UNLV, wrote, "His child was conceived in part because he did not know, at that time, about how children were conceived or about birth control."
Neighbors says in her interviews with family members she found that Nevius was distraught after his female companion took the child and returned to Pennsylvania, and that he was involved with alcohol and drugs.
"It was in the wake of these events that he was arrested and charged with murder a second time and sentenced to death," said Neighbors, a psychologist at Lake's Crossing, a facility for criminal offenders in Sparks.
Michael Pescetta, the death penalty specialist in the federal public defenders office, said Monday that those three independent examinations come to the same conclusion as his experts.
"This certainly helps," he said.
Pescetta said he will ask that Nevius' sentence be commuted to life in prison without the possibility of parole. Chief Deputy District Attorney David Roger, who was elected district attorney in Clark County last week, urged the board at the first hearing not to commute the sentence. He said Nevius was not mentally retarded, and "possessed all the skills to be a functioning member of a lawful society."
In July 1980 Nevius and three other men entered the home of David and Rochelle Kinnamon in Las Vegas. David was at work and Rochelle was watching television shortly before midnight. The four ransacked the apartment. Nevius and another man dragged Rochelle into the bedroom and began sexually assaulting her.
All four fled out the window when David came home. Nevius fired four shots, hitting David, who was killed by a bullet in his head. Rochelle has since died.
At the time of the killing, Nevius was identified by his companions as the shooter. Fellow defendant Greg Everett received life without the possibility of parole; Art Tiger got a life sentence with the possibility of parole in 2020; and David Nevius, Thomas' half brother, received probation.
When Nevius was 15, in 1971, he shot and killed a rival gang member in Philadelphia. He pleaded guilty to second-degree murder and spent time in a juvenile detention facility. He was released to a halfway house, but he fled and moved to Las Vegas to be with his father.
Nothing in Nevada law prevented a mentally retarded person from being executed before the decision by the U.S. Supreme Court. A legislative study committee that examined the death penalty law in Nevada recommended the state bar study the death penalty for mentally retarded individuals.
A month before the first meeting of the Pardons Board on the Nevius case, Dr. Eric Sohr, a psychiatrist at the prison, found the inmate to be borderline mentally retarded. But Sohr found there was no evidence to suggest that Nevius "has any significant mental disorders."
Defense lawyers filed reports from David Schmidt, a clinical neuropsychologist at the University of Nevada, Las Vegas, and Denis Keys, an associate professor of special education at the University of Charleston in South Carolina.
Schmidt found Nevius is "mildly mentally retarded but more importantly, he is brain damaged and in the mentally retarded range of mental functions."
All three of the independent evaluations found that Nevius was not trying to fake mental retardation. They said he sought to answer the questions to the best of his ability, even though the correct answer would not be to his advantage.
Nevius' execution has been scheduled three times, appeals have delayed it.
archive
