Nevada's Pardons Board was hoping the U.S. Supreme Court decision barring execution of the retarded would match psychological evaluations of Thomas Nevius for a clear answer whether his death sentence should be commuted.
They didn't get it.
First, the U.S. Supreme Court didn't draw a line between competent and retarded. It left states to decide where to draw that line within a gray area.
Second, the psychologists who tested Nevius say he is "mildly retarded." In other words, he's right in the middle of that gray area.
So, after putting it off for a year, Pardons Board members Gov. Kenny Guinn, Attorney General Frankie Sue Del Papa and members of Nevada's Supreme Court in November face essentially the same issues they did in April 2001.
Nevius, 45, has been on death row since he was convicted of the July 12, 1980 murder of David Kinnamon, 34, who was shot to death when he arrived home to find four people assaulting his wife.
Nevius denied shooting Kinnamon, but at his trial, videotaped testimony from co-defendant Gregory Everett implicated Nevius as the gunman.
Kinnamon's wife also identified Nevius as the triggerman at trial, although she was not as certain at earlier grand jury proceedings.
A year ago, arguments over Nevius' mental abilities prompted the board to ask a panel of independent psychologists examine him and give them an unbiased report. They asked for enough detail to help them determine exactly what Nevius can or can't do.
Guinn received those evaluations six months ago but held off placing Nevius on the May agenda because the U.S. Supreme Court decision was imminent.
In those evaluations, Jeffrey Kern of the UNLV Psychology Department, Elizabeth Neighbors of Lakes Crossing Center for the Mentally Disordered Offender and Donald Jackson, director of psychological services at the state's Sierra Regional Center, describe a man with extreme difficulties handling what most people consider everyday tasks.
Their descriptions of his abilities and problems are designed to help the Pardons Board understand what "slightly mentally retarded" means.
Both Kern and Jackson, for example, pointed out that Nevius is unable to recite the entire alphabet, "even by using the ABC song."
"Although he spoke clearly and did not give the impression of mental retardation from his oral discourse, Mr. Nevius could read only at first- to second-grade level," said Kern. He said Nevius was unable to arrange words alphabetically and can only partially print or write short notes without help.
Neighbors said his father and sister confirmed that he often writes from prison but that the letters are printed in large letters and often incomprehensible.
All three reported that his daily living skills are worse. He can't make himself meals beyond such things as pouring a bowl of cereal or microwaving a prepackaged snack.
"Mr. Nevius feeds himself but has some difficulty using a knife," Kern reported. "Respondents reported that they could not recall him cutting with a knife and the patient reported that he usually just takes a steak by the bone in his hand and bites it."
He was unable to make change for anything more than a dollar and they concluded from tests and reports from friends and relatives that he doesn't understand the value of money. He once gave a shop clerk $50 for a cheap ball-cap.
While he can dress himself, Nevius doesn't take weather into account and requires reminders with even small daily hygiene tasks such as brushing teeth and bathing, Kern reported.
Nevius was able to get a drivers' license with help from his father, but admitted he didn't understand speed limits and just followed the speed of other cars.
Finally, he fathered a child with one girlfriend but the psychological team concluded that, "His child was conceived, in part, because he did not know, at that time, about how children were conceived or about birth control."
Nevius was described as "kind and helpful," cooperative and friendly. They said he was sensitive and loyal to friends but laid out a picture of a man who is extremely gullible and easily led by others.
They said his problems stemmed not only from mental deficiencies that may have resulted from his mother's alcohol and possible drug abuse while pregnant but from his own drug abuse -- including inhaling glue and other substances. In addition, they pointed to a head injury he received while a child when his brother knocked him unconscious with a heavy object.
His history dates back to age 13 when tests set his IQ at 69.
All three concluded that Nevius is mildly retarded but more limited when it comes to handling daily living tasks.
"Even though Mr. Nevius displayed relatively impressive skills in some areas, particularly evident in his polite demeanor and verbal expression on familiar topics, all major domains of adaptive behavior were within the range necessary for the diagnosis of mental retardation," Jackson concluded.
But they uniformly set his IQ between 68 and 79, which gives him a mental age of about 11 and puts him squarely in that gray area.