Thomas Nevius Clemency Letter -- STAY GRANTED APRIL 2001

Stay of Execution

Nevada Board of Pardons
1445 Hot Springs Road, Suite 108-B
Carson City, Nevada 89711
Attn: Ms. Susan McCurdy

Re: Thomas Nevius

Dear Board Member:

On behalf of the American Civil Liberties Union, we implore you to grant clemency to Thomas Nevius. Thomas Nevius has been on death row since 1982, has faced three separate execution dates, and has exhausted all other avenues of legal redress. It is clear that the legal process has inadequately safeguarded Thomas Nevius rights. However, this Board, in mercy and as an act of grace, has the ability to remedy this failure. A stunning combination of factors in this case merits the relief sought.

Thomas Nevius is mentally retarded and brain damaged with an IQ between 57-68. He functions in every way as a child: his communication skills are equivalent to those of a five-year old, his daily living skills to those of a nine-year old, and his socialization to that of a seven-year old. Thomas brain damage further compounds his cognitive impairments.

Remarkably, the jury that sentenced Thomas Nevius to death never had the opportunity to consider his mental retardation and brain damage information which must be considered by a jury in deciding whether or not to impose a death sentence. Thomas Nevius trial counsel has since admitted that his lack of experience in trying capital cases prevented him from presenting these and other compelling mitigating factors to the jury.

As might be expected, if the jury had been presented with this information, it would not have imposed a death sentence. For seven of the original jurors now support Thomas Nevius clemency effort, six of whom have signed sworn declarations stating that they would never have voted to execute Thomas if they had known of his impairments.

Three other men participated in the crime for which Thomas Nevius was convicted, including Thomas half-brother, David Nevius. None of these others was retarded or brain-damaged, and none of them received a death sentence. In particular, David Nevius was permitted to plead guilty to voluntary manslaughter in exchange for his testimony against Thomas. David Nevius received probation.

As equally unsettling as the jury s failure to hear of Thomas mental impairments is the fact that the prosecutor used his peremptory challenges to remove all minority jurors from the panel, such that every participant in the trial the judge, the defense lawyers, the prosecutor, and the jury was white, save for Thomas Nevius who is African-American. It is incontrovertible that the prosecutor s challenges were racially motivated the prosecutor expressly admitted in oral argument before the Nevada Supreme Court that he could not separate the race of the challenged jurors from his justifications and that he has "a fear for good reason" of allowing black people on juries. More disturbing is the prosecutor s comment to one of Mr. Nevius defense lawyers stating "you don t think I wanted those niggers on my jury, did you?" Thomas Nevius trial counsel, however, never sought to bring this to a court s attention until Mr. Nevius federal habeus corpus proceedings, at which point the court deemed it too late. Due to his trial counsel s failure to place this information before the state courts when it was obtained, Thomas Nevius has never been afforded a full evidentiary hearing to allow him to litigate whether racial discrimination affected the fairness of his trial.

More and more Americans have concluded that the execution of people suffering from mental retardation is unacceptable. The federal government and 13 states bar the execution of the mentally retarded, while a half-dozen more have introduced similar legislation.

Further, the United States Supreme Court on March 26, 2001, recognized, when it agreed to hear the petition of Ernest P. McCarver, a death row inmate with an IQ of 67, that the execution of the mentally retarded may, in fact, be unconstitutional.

The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution. This Board, however, need not wait for the Supreme Court to conclude that the execution of Thomas Nevius would be cruel and unusual punishment. Thomas Nevius case cries out for clemency.

We respectfully urge you to grant clemency in this tragic case.


Diann Rust-Tierney Gary Peck
ACLU Capital Punishment Project 

Gary Peck
ACLU of Nevada

Amy L. Friedman
Pro Bono Counsel
Squire, Sanders & Dempsey, L.L.P.

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