On a brilliant spring day in 1996, flanked by American flags on the White House South Lawn, President Clinton signed the Antiterrorism and Effective Death Penalty Act. "From now on," he told the gathered citizenry as a military band stood by, "criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences. And families of victims will no longer have to endure years of anguish and suffering."
Across the country, filthy and unresponsive, a 36-year-old black death-row inmate named Horace Edwards Kelly huddled unmoving in a corner of his San Quentin cell, almost certainly unaware of Clinton’s new law and the impact it would soon have on his life. Kelly, who was condemned for killing two women and an 11-year-old boy 12 years earlier, was severely mentally ill. His condition today is much the same: His face is frozen in a vacant smile, his hair unkempt and nails uncut. He seldom bathes or uses the toilet, and an awful stench emanates from his cell. Shortly before the law’s enactment, a court-appointed psychiatrist diagnosed Kelly with "a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position." Last month, when asked by his attorneys if he understood his situation, he said that he was not concerned because he’s "had numerous executions in the past, and they haven’t done him any harm."
But if all goes as planned, Kelly will be put to death on April 14 without his case ever having been considered in federal court and despite a Supreme Court ruling that expressly forbids the execution of an insane person. If his execution is carried out, Kelly will become what some legal experts fear will be the first of many casualties of the Antiterrorism and Effective Death Penalty Act. "Cases are going to be pushed through without adequate preparation," says Maria Stratton, Federal Public Defender in Los Angeles. The act "certainly increases the possibility that someone is going to be wrongly executed."
Kelly should have had, like virtually every U.S. prisoner sentenced to death, a federal review of his case. But his attorneys failed to meet the new law’s one-year deadline for filing a federal writ of habeas corpus. Rooted in the Magna Carta and codified in the wake of the Civil War, federal writs of habeas corpus (from the Latin, meaning รค "you are to produce the body") guarantee a fundamental check on the penal process, giving the federal courts the chance to catch state errors that could send the truly innocent or the clearly insane to an unjust end. Between 1976 and 1991, the federal courts reviewed 361 habeas petitions for state prisoners on death row nationwide and found constitutional grounds to reverse 144 of them. Given this 40 percent reversal rate, it would be hard to overestimate the writ’s importance in capital cases.
There is no question that Horace Kelly killed three people and that his were heinous crimes. The mother of at least one of his victims wants to see him dead, and even his own attorneys have no interest in getting Kelly released from prison. But many who are familiar with the Kelly case feel his execution would be a gross miscarriage of justice. Horace Kelly is the first person slated for execution since the death penalty was reinstated in California in 1978 whose sanity is seriously in question. He is also the first to have had no federal appeal. "To say, ‘Well, you may be crazy, but too bad, you missed your deadline’ is putting the form over the substance, the procedure over the person," says Richard Dieter, executive director of the Washington, D.C.–based Death Penalty Information Center. "To do that when a person’s life is at stake is tragic."
Horace Kelly’s life of crime was brief and gruesome. For 24 years he had stayed out of trouble with the law. Then, with no visible warning, he snapped, killing three people over a six-day period in the fall of 1984.
The morning of Friday, November 16, was warm and clear when Horace Kelly woke up before dawn to drive his stepson to work at a San Bernardino meat-processing plant. On his way home, he picked up a 25-year-old woman named Sonia Reed, who was hitchhiking after freebasing cocaine with a friend. In a secluded grove in a nearby cemetery, Kelly attempted to rape Reed. He then shot her twice at close range, killing her. The next morning, Kelly again arose in darkness to take his stepson to work. On his way home, he encountered Ursula Houser, a 43-year-old woman who had been dropped off in the neighborhood after a night of drinking and playing pool. Kelly fatally shot Houser behind her left ear. He then dragged her several feet and tried to rape her. When police found Houser’s body a short time later, she was naked from the waist down.
The following Thursday, Thanksgiving Day, Horace Kelly had an early dinner with his wife and family, put on his tan security-guard uniform and headed to his post at a construction site in western Riverside County. In the early evening, he drove to a nearby convenience store for coffee. About the same time, 11-year-old Daniel David Osentowski, who had finished his Thanksgiving dinner with relatives, decided to walk to a neighborhood store to buy candy with his 13-year-old cousin, Shannon Lee Prock. As they headed home along a deserted stretch of road, they saw Horace Kelly walking toward them from an idling van. Kelly passed the two, then suddenly grabbed Shannon around the neck, pushing his gun into her side. As Kelly dragged the girl toward his van, Danny began kicking him, causing him to loosen his grip. Shannon wrested herself free and scaled a nearby concrete wall surrounding the housing development where she lived. When she reached the top, she heard shots, and then her cousin pleading for his life. "Don’t shoot me again," he begged. Kelly shot Danny Osentowski twice, first in the right side of his chest and then, at close range, in the right side of his face.
