Jury Told Man Is Too Insane to Be Executed


A week after he was scheduled to die by lethal injection, triple murderer Horace Edward Kelly Jr. was painted by his defense attorney as a severely mentally ill man, a man out of touch with reality, a man with a “broken brain.”

“The evidence in this case will show that Mr. Kelly currently suffers from a long-standing, major mental illness characterized by psychosis and impeded brain function,” defense attorney Richard Mazer told a jury as a rare sanity trial began to determine whether the inmate is mentally fit enough to die.

“The evidence will show that for a long period of time, Mr. Kelly makes togas of his sheets, hoards his food, puts it in the toilet, hoards his feces, rolls his feces up in balls and places it in his cell, smears feces on the walls and does not flush the toilet.”

Well turned out in a pressed white dress shirt, long black beard and hair combed, Kelly sat mute and immobile as the proceedings swirled around him in court. Chained to a chair at the defense table, he appeared more silhouette than man.


Which caused Mazer to warn jurors during his opening statement that the neat prisoner they saw in Department F of Marin County Superior Court is not the real Horace Kelly.

“The person described in medical records is not necessarily the person you see here today,” Mazer said. “Mr. Kelly has been showered, manicured, his beard trimmed, his face has been lotioned, his hair styled. . . . You must judge the real Horace Kelly. I am confident that you will return a verdict that he is not competent to be executed.”

Prosecutor Ed Berberian, who delayed his own opening statement until later in the trial, has not divulged where he stands on the question of Kelly’s sanity, nor has he discussed his strategy.

The trial into whether Kelly is competent for execution was triggered last month, when the San Quentin State Prison warden notified the Marin County district attorney that the condemned man’s sanity was in question.


This is the first time in nearly half a century that a California jury has had to decide whether a condemned man--sane when he committed his crimes in the Inland Empire in 1984, sane when he was convicted and sentenced to death--went mad on death row and should not be executed.

In 1986, the U.S. Supreme Court ruled that it is cruel and unusual punishment to execute the insane and required due process in deciding the mental fitness of the condemned.

The trial began April 7. When it became clear that the state was set to execute Kelly before the jury could be chosen, Superior Court Judge William McGivern postponed the execution until the case ends.

A jury with four alternates was impaneled Thursday. It includes five people who believe that death penalty cases drag on too long and four jurors who questioned the whole point of the hearing.


During the arduous selection process--which focused on prospective jurors’ beliefs about mental illness and capital punishment--the four told McGivern that they didn’t think that mental competence should affect whether a murderer should be put to death.

Kelly, 38, was convicted of attempted rape and murder in the deaths of two women in San Bernardino and the murder of an 11-year-old Riverside County boy.

According to prison records and Kelly’s family, the man was severely abused as a child, exhibited “trances” and odd behavior since he was a toddler, and slipped into severe psychosis in prison.

The first defense witness testified that Kelly has no idea what it means to be executed, cannot string a comprehensible sentence together and believes that he is in college, not death row.


Dr. Roderick Pettis, a San Francisco psychiatrist appointed by the court to examine Kelly, interviewed him April 3 for 90 minutes. Pettis told jurors that when he asked Kelly what judges do, what doctors do, what attorneys do, how long he has been in prison, the answers were a complete garble punctuated with the occasional understandable phrase.

“What happens when people die?” was one question Pettis put to Kelly. The answer: “They sell charges. Each person receives prizes and the family background.”

Pettis diagnosed Kelly as having continuous schizophrenia of the disorganized type.

“My opinion is that, given the severe level of his mental disorganization, he was unable to understand that he was being executed or that he had committed any crimes that would get him punished or executed,” Pettis said.


Berberian sought during cross-examination to paint Pettis as a psychiatrist who has regularly examined condemned inmates on behalf of the defense. And he repeatedly questioned Pettis about the extent to which a schizophrenic person can function.

Berberian: “You can be diagnosed as schizophrenic and still be legally competent?”

Pettis: “Yes.”

“Schizophrenia itself is not the same as legal insanity?”


Pettis: “No.”