Death Row Inmate: Is He Now Insane?

This was what was supposed to happen: At a minute after 12 a.m. Tuesday, San Quentin inmate Horace Edward Kelly Jr. was to die by lethal injection for the murders of two women and a child.

So far, though, nothing is going as planned. In fact, there really is no plan.

For the first time in nearly half a century, a condemned man in California faces a jury trial at the 11th hour to decide if he is sane enough to be executed after what his lawyers say was a 12-year descent into madness on death row.

Kelly was ruled sane when he committed his crimes in 1984, and sane when he was sentenced to death.

This week, jury selection began in the unprecedented trial to decide if Kelly is still sane enough to die. As the clock ticked toward the scheduled lethal injection, the trial judge Thursday granted Kelly a brief postponement of execution, ruling that the state may not kill the killer without a decision on his sanity.

“There are no rules. The rules are being written as we go along. The judge could be deciding the rules and the future” of death penalty law in California, said Richard Mazer, Kelly’s defense attorney. “This will be a precedent.”

Sanity is a moving target. So is the law. And only one thing is clear when the two intersect: It is illegal--unconstitutional, in fact, a violation of the 8th Amendment--for an insane person to be executed. The U.S. Supreme Court said so in 1986.

What the high court didn’t spell out, however, was how the mental state of a condemned criminal should be judged on the eve of death, leaving legal minds across the country struggling to find 50 separate sets of guidelines to define that ephemeral thing we call sanity.

The only law in California that addresses this question is very nearly a century old and has not been used since 1951--a legal lifetime away in the fast-changing arena of death penalty policy.

The statute gives precious little guidance to Marin County Superior Court Judge William McGivern, as he struggles to figure out how to figure out if Kelly--described by one defense attorney as a “walking vegetable”--should die for his crimes.

If the jury decides that Kelly is not competent to be executed, a legal controversy will be laid to rest but an equally thorny medical issue will arise. For Kelly, 38, will be sent to a mental institution until he is cured. If cured, he will then be sent to die. And what doctor would save a patient only to see him killed by the state?

“It gets into the bizarrest area of the law,” said Victor Streib, dean of the law college at Ohio Northern University and a death penalty expert. “If someone is found to be insane, then they’re sent into treatment. If the goal of treatment is to get them well, they’re executed. If they stay crazy, their life is saved.”

Two Women, Boy Are Slain

Kelly began his march toward death row 14 years ago, on a Friday morning in late November when he picked up a hitchhiker named Sonia Reed. Her body, nude from the waist down, was later found behind a headstone at a San Bernardino memorial business. She had been shot twice and left for dead.

The next morning, Kelly picked up Ursula Houser, tried to rape her and shot her to death. Her body, also nude from the waist down, was found in a San Bernardino alley with a bullet in the head.

The final victim was 11-year-old Danny Osentowski, shot three times in the face on Thanksgiving Day as he fought to prevent Kelly from kidnapping his 13-year-old cousin, Shannon Prock.

The two children were on their way to the store for candy after a holiday meal in a Riverside County town called Pedley. Kelly, then 24, accosted the pair as they walked home along a darkened dirt path.

He grabbed Shannon and put a pistol to her neck. Panicked, Danny tried to flag down passing motorists, but no one would stop. So he returned to help Shannon, as Kelly dragged her off to a van. Danny kicked Kelly in the shins, and his cousin escaped.

Shannon heard two shots ring out, she testified later. Then Danny pleading: “Don’t shoot me again. I’ll die this way.” Then a third shot. The last one struck the 11-year-old between the eyes, killing him.

Kelly was convicted of murder and attempted rape in 1986 for the deaths of Houser and Reed. Two years later, he was convicted of Danny’s murder and sent to San Quentin State Prison to await execution.

But a lot can happen in 12 years on death row.

“It’s the most stressful confinement of anywhere,” said Michael Radelet, chairman of the sociology department at the University of Florida and author of a book called “Executing the Mentally Ill.” “By definition, a certain proportion of people will go nuts living under those conditions for a number of years. And this guy didn’t start with a full deck of cards.”

A Childhood of Beatings, Sex Abuse

Horace Kelly’s youth was a never-ending stream of abuse--sexual assault and physical attack that spanned the decades and bridged the generations of his troubled and violent family.

Kelly’s father, Horace Sr., was beaten by his own father and grew to turn his fists on his wife, Phyllis, and his eight children, according to court declarations filed by Phyllis and two of her other children. Kelly was beaten by his mother, his father, his siblings, strangers. He was sodomized repeatedly by Horace Sr.--also known as Eddie--and by men he barely knew, family members said.

His sister Cynthia describes years of rape by Horace Sr., torment, she says in court documents, that led her to burn down the family home in a failed effort to make it stop. Kelly’s younger brother, David, describes being beaten and molested by his sisters--in addition to the physical abuse by his parents.

But while life in the Kelly household was bad for everyone, it was worse for Horace Jr.

“Eddie was mean to [Horace Jr.] from the start,” Phyllis Kelly said in her declaration. “When Horace cried, Eddie beat him. He hit Horace with his hands, whipped him with a belt, and threw him against the wall. . . . When he hit one child, he usually hit Horace, too. . . . He hated the sound of his own son laughing.”

Kelly’s problems began long before the abuse did. Phyllis Kelly describes her pregnancy with Horace as nine months of drinking gin, barely eating, being beaten by her husband. She lost 25 pounds--at a time when most women gain at least that much.

Kelly was born two months early, weighing just 2 pounds. He spent his first three months in a New Jersey hospital--much of it in an incubator--while his mother left for Washington, D.C., to join her husband, who was in the military.

“I hadn’t even touched him before I left,” Phyllis Kelly said in court papers. “When Horace was finally released [from the hospital], we hadn’t named him yet.”

Two years later, he had the first of what his mother called “spells or trances.” While the family worried that he might have a problem with seizures like his Uncle Oliver and his sister Chrynthia, they never got the toddler medical attention.

The trances, along with many of Horace’s other frailties, enraged Eddie. During one particularly savage beating, Phyllis said, she tried to intervene, but Eddie hit her and threw the 3-year-old Horace against the wall. “The impact made a hole in the Sheetrock wall,” Phyllis said. “My husband had to fix the hole.”

Attorneys Allege Mental Deterioration

Eddie Kelly finally left the family and was eventually shot to death by a neighbor after beating the woman he had moved in with, according to his wife. But life with Phyllis--a devout member of the Seventh-day Pentecostal Church who believed in demons--was hardly an improvement.

“Another aspect of church doctrine was our belief that ‘the rod’ was an important tool in disciplining the children,” Phyllis Kelly said in court papers. “When my children misbehaved I usually used a switch, but I often just used whatever object was available.”

Kelly’s defense attorneys argue that their client had a well-documented history of mental impairment, starting with trances at age 2, progressing through special education classes in elementary and high school and accelerating after moving to Southern California when he hit a jail cell for the 1984 crimes.

Over the years, reports by prison and court-appointed psychiatrists noted this mental deterioration:

* 1991: Kelly has “bizarre delusions and hallucinations, incoherence, catatonic behavior and inappropriate affect.”

* 1993: “Mr. Kelly appeared actively psychotic and gravely disabled.” And “DIAGNOSIS: Schizophrenia, chronic, undifferentiated type, in partial remission.”

* 1995: “He is now suffering from a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position and make rational choices with respect to the current court proceedings.”

His current lawyer says that through the years Kelly was unable to assist in filing appeals--the most recent of which was turned down by the U.S. Supreme Court on Monday.

In preparation for the jury trial to decide whether Kelly is sane enough to die, his defense attorneys had him examined in March by Dr. Sophia Vinogradov, a psychiatrist and assistant professor at UC San Francisco.

Vinogradov’s report describes a man whose thinking is “illogical and bizarre,” whose speech has deteriorated to “word salad, a nonsensical mixture of words and phrases,” who is disheveled, disoriented and evil smelling.

When asked how he came to be at San Quentin, he replied “through different types of verification birth certificate, law enforcement, birth certificate that covers family and family with fertilization. It goes through doctors something to look up at the library. Something know how to use.”

When asked if he feels guilty or bad, Kelly said: “The word guilty goes to litification examination. You also can defend a person. Guilt runs three different words and magnatize self.”

When asked if he was afraid to die, he responded: “Various saying between different languages. It goes to first and middle class.”

“In my professional opinion,” Vinogradov concluded, “Mr. Kelly is unaware of the punishment he is about to suffer and why he is to suffer it. He is unable to understand his current legal situation and assist his counsel in preparing or presenting any legal basis for halting the execution. Mr. Kelly’s psychiatric illness robs him of the ability to think rationally and logically, to make sense out of his environment and to respond to others meaningfully.”

To date, Marin County Deputy Dist. Atty. Ed Berberian has declined to comment on either his trial strategy or his position on Kelly’s mental state.

Rare Event for California Jury

During the course of the trial, jurors will hear witnesses from both sides and then grapple with the question of Kelly’s sanity. It will be the first time that a California jury will face such a last-minute decision since Leandress Riley was found competent for execution by a 9-3 vote in 1951.

Since then, however, much has changed. The 1905 statute that guided the Riley decision called for the following process: If the warden of a prison questions a condemned inmate’s sanity, he must alert the district attorney in the county that houses the prison.

Then the inmate must be examined by three health care professionals. A jury must be impaneled and the district attorney can call witnesses.

The condemned inmate is not allowed to be present, nor is he guaranteed an attorney or the opportunity to have witnesses cross-examined. In other words, Mazer says, there is no due process.

But when the U.S. Supreme Court ruled in 1986 that it is cruel and unusual punishment and therefore unconstitutional to execute the insane, it also added a requirement for due process. But it didn’t give instructions. Today, most states have hearings instead of formal trials to decide the sanity of the condemned on the rare occasions that the issue arises.

Kelly’s current trial was kick-started earlier this year when an execution date was set and the San Quentin warden notified the district attorney that there were questions about Kelly’s mental health.

Because Kelly is the first California inmate in this spot, “what we’re doing in this trial is the judge is trying to graft due process procedures onto this ancient statute,” Mazer said. “The statute is being used here in a way that was never envisioned by the people who wrote it.”

Death penalty expert Charles Ewing, a psychologist and law professor at the State University of New York at Buffalo, calls California’s process “strange,” “fuzzy” and “not constitutionally mandated.”

Lance Lindsey, executive director of the anti-execution group Death Penalty Focus, has been in the courtroom as McGivern has made decisions ranging from whether jurors should be asked about their opinions on the death penalty even though they are not technically sentencing someone to death (yes), to whether he as a judge has the power to postpone the execution (no, then yes).

“The feeling I’ve got in the courtroom is a lot of confusion,” Lindsey said, “a lot of, ‘We’ve never done this before. Let’s make this up.’ . . . There is no case law for a lot of these decisions, that was the discussion in the courtroom. There’s no precedent to guide the judge.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

California Executions

If Horace E. Kelly Jr. is put to death Tuesday, he will be the fifth person executed since the state resumed using the gas chamber in 1992 and then switched to lethal injection in 1996. The others were:

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Inmate When Executed Victims Robert Alton Harris April 1992 2 San Diego teenagers David Mason August 1993 5 people in Oakland William G. Bonin February 1996 21 boys and young men in L.A. and Orange Counties Keith Daniel Williams May 1996 3 people in Merced

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Who’s Next?

There are 495 men and eight women on Death Row. Officials say it is difficult to predict who will be executed next because the appeals process is so erratic. But the state Attorney General’s office say these inmates might be getting close:

Thomas Martin Thompson: Sentenced in August 1984 for the 1981 murder of a Mission Viejo woman. His appeal has been argued before the U.S. Supreme Court and officials await a decision.

Jaturun Siripongs: Sentenced in April 1983 for the December 1981 murders of two people during a Garden Grove robbery. His latest appeal has been denied by the U.S. 9th Circuit Court and he now must appeal to the U.S. Supreme Court.

Source: Times news files; California Attorney General; state Department of Corrections.

Researched by TRACY THOMAS / Los Angeles Times