Attorneys for condemned killer Horace Edwards Kelly asked a Riverside County judge Monday to spare their client because, they say, he is mentally retarded. It's the first court case to be tested under a recent California Supreme Court ruling that defined the disability for inmates facing execution.
Kelly, convicted of murdering an 11-year-old boy and two women in 1984, could have his death sentence reduced to life without parole if the judge decided he was mentally retarded and his behavioral and practical disabilities began before he was 18.
Last February, the state's high court ruled that inmates could challenge their death sentences as long as a qualified expert said they were retarded.
Defense attorney Harry Simon told Riverside County Superior Court Judge W. Charles Morgan that two mental health experts had determined that Kelly, 46, met that criteria.
However, Riverside County Chief Deputy Dist. Atty. Kevin Ruddy said his psychiatric expert would testify that Kelly was mentally competent and that there was no evidence showing he was found to be mentally retarded before he became an adult.
Ruddy, during a break in what is expected to be a two-week hearing, said that an IQ test given to Kelly in high school scored him at 85, which was "way above" the IQ level associated with mental retardation. The average IQ is 100.
Kelly faces three death sentences, including one for the shooting death of Danny Osentowski on Thanksgiving Day in 1984.
The boy was walking home with his 13-year-old female cousin from a convenience store in the Riverside County town of Pedley. Kelly's shift as a security guard at a nearby construction site had just ended, and he grabbed the girl and held a .357 magnum handgun to her neck as he dragged her to his van, court records show.
Danny kicked Kelly, allowing his cousin to escape. Kelly shot Danny once in the chest.
"The first shot was nonfatal," Ruddy said. "Kelly shot again, but we believe the boy pushed the gun away because the second shot missed and the boy had a bruise on his hand. But the third shot hit Danny right between the eyes."
Kelly confessed to the slaying. Detectives then determined that bullets from his gun matched bullets used in two San Bernardino County murders the week before.
Sonia Reed and Ursula Houser had been found shot in the back of the head and nude from the waist down. Kelly took two of Houser's rings, giving one to his wife and selling the other to his mother-in-law, prosecutors said.
He confessed to raping the women, court records show.
During Monday's hearing, Kelly's attorney argued that his client had displayed significant mental deterioration, including language problems and major intellectual and behavioral problems that included the hoarding of his feces and rotten food in his prison cell.
Kelly has also been diagnosed with schizophrenia, his attorneys say.
Dr. Stephen Greenspan, a University of Colorado clinical psychiatry professor scheduled to testify for Kelly's defense, concluded that "Kelly's mental retardation renders him incapable of assisting counsel," according his pre-hearing declaration. Kelly suffered traumatic head injuries from child abuse that caused brain damage, he stated.
Another defense expert, Sophia Vinogradov, a clinical, academic and research psychiatrist employed by the San Francisco V.A. Medical Center, wrote in a declaration that Kelly "is one of the most ... impaired adults I have ever met."
Kelly "suffers from mental impairments so profound that he is incapable of coherently and accurately expressing his perceptions, thoughts, decisions, desires or memories," she said. "Kelly frequently speaks in an incoherent word salad that makes his speech practically unintelligible."
Kelly attended Monday's hearing. He wore an orange Riverside County jail jumpsuit and had a thick, black mustache and beard peppered with gray.
Nancy Thomas, whose family ran a board-and-care home for the mentally disabled in San Bernardino, testified said Kelly was referred to the home in the early 1980s by a local church official.
Thomas discussed Kelly's lack of hygiene, education and common sense. She said Kelly spent in the home's basement, which was dark, cold, moldy and infested with rats.
"He just didn't operate in an arena I called common sense," said Thomas, who added that Kelly once told her "if he howled at the moon, he'd turn into a werewolf."
However, Kelly's aunt, Alice Butcher, testified that her nephew "took on the role of provider" for his mother following the death of his father, working several jobs, getting a driver's license and doing several chores around their home.
"Kelly just plays dumb wherever he goes; he just acts goofy," Ruddy said. "That's his M.O."
In 2002, the U.S. Supreme Court ruled that executing a mentally retarded person was unconstitutional because it qualified as cruel and unusual punishment.
The high court left it to the states to define retardation.
The California Supreme Court addressed the issue in February. The court rejected pleas from prosectors to define retardation as having an IQ of 70 or below.
Instead, The court ruled that a judge must decide whether it was more likely than not that a defendant had "significantly subaverage general intellectual functioning" and that the disability began before age 18.
Kelly twice has been within a week of a scheduled execution. He won stays both times.