Condemned Killer Is Sane, Awaits Execution

A jury found Thursday that triple murderer Horace Kelly, described by his attorney as a man with a “broken brain,” is sane enough to be executed.

The verdict means that state prosecutors can move forward with the execution of Kelly, the first condemned inmate in California in nearly half a century to face a sanity trial on the brink of his scheduled death.

The Marin County jury deliberated less than two hours before deciding, by a 9-3 vote, that Kelly understood that he is sentenced to die and why. A unanimous vote was not required.

Kelly, 38, was found sane when he was convicted of murdering two women and an 11-year-old boy in Riverside and San Bernardino counties, but his lawyers say that he went mad during 12 years on death row.

The U.S. Supreme Court ruled in 1986 that it is cruel and unusual punishment to execute the insane.

Kelly’s unusual trial lasted six weeks, forcing corrections officials to cancel his scheduled April 14 lethal injection.

The case ended Thursday as most of the jury decided that the inmate met the legal standard for execution.

“I felt he was conscious. He was there,” said juror Robert Mountanous, the son of a retired sheriff. “He was coherent enough to get the sentence that he was being given.”

But the jury’s foreman, Michael Aiello, said he believed Kelly was too mentally ill to be executed.

“It was easy for nine of the jurors. It wasn’t easy for me,” he said.

Kelly sat impassively as the verdict was read, just as he sat throughout the entire trial. He is being returned to San Quentin State Prison and faces a new execution date of June 9. His attorney has vowed to appeal.

Atty. Gen. Dan Lungren, who is running for the Republican nomination for governor, said he was not surprised by the verdict.

“It is the state’s position that [Kelly] has exhausted all of his appeals and . . . this should go forward now,” Lungren said.

Kelly’s case has attracted national attention, with death penalty foes and advocates watching it closely.

“People will be shocked that we can lower ourselves to such a level that we execute someone who is mentally retarded and so profoundly mentally ill,” said Lance Lindsey, a death penalty foe who followed the case for Death Penalty Focus of California.

Stephen Rhode, chairman of the Death Penalty Committee of the American Civil Liberties Union in Los Angeles, pointed out that if one more juror had decided Kelly was insane, he would be spared execution.

“The notion that one juror will decide the fate of this man when the overwhelming psychiatric evidence demonstrated that he did not understand the idea that he would be executed or why is reprehensible in our system,” Rhode said.

But Mike Rushford, with the conservative Criminal Justice Legal Foundation, said that Kelly got a fair hearing.

“I’m very comfortable with this verdict,” Rushford said. “If we don’t allow juries to make these decisions, or don’t respect these decisions that a jury makes, then there is a real question of whether we are going to tolerate any kind of justice at all.”

The sanity trial was triggered after prison psychiatrists examined Kelly and found him to be schizophrenic. A 1905 California law requires a jury to determine a death row inmate’s sanity if questions are raised before a scheduled execution. The jury must decide based on the preponderance of evidence, and nine of the 12 must agree.

If jurors had found Kelly insane, he would have been sent to a mental facility until was deemed sane.

Defense attorney Richard Mazer maintained that California’s law is unconstitutional. Mazer called psychiatrists and prison guards to testify, painting a portrait of an inmate who was out of touch with reality and unaware of his surroundings.

Nicknamed “Smelly Kelly” on death row, Kelly was described as hoarding his feces and smearing it on the walls of his cell, rarely bathing and speaking incoherently much of the time. His attorneys told of a childhood scarred by abuse and sexual assaults.

During the trial, prosecutor Ed Berberian conceded that Kelly was “not a rocket scientist” but said he had enough smarts to connect his crimes and his punishment.

Psychiatrist Diane McEwen, who testified for the prosecution, said Kelly told her that death meant he wouldn’t be able to have a family, named two of his victims and beat her at tic-tack-toe during a 90-minute interview.

Kelly’s attorneys requested a mistrial shortly before the case was handed to the jury, contending that Berberian had inflamed the jury in his closing arguments by showing them video silhouettes representing Sonia Reed, 24, and Ursula Houser, 43, the women Kelly was convicted of attempting to rape and murder and of Danny Osentowski, the 11-year-old Riverside boy he shot to death.

In Berberian’s presentation, each head was crossed with a large red “X” and the pictures carried the victims’ names, ages, dates of birth and the date each died.

Marin County Superior Court Judge William McGivern denied the mistrial but instructed jurors to disregard the images during deliberations.

Defense attorneys, who left court without comment Thursday, are scheduled to return May 29 to request a new trial.

Times staff writers Eric Lichtblau and Maura Dolan, researcher Norma Kaufman and Associated Press contributed to this story.