When Mazer went to San Quentin in mid-March to meet Kelly, he found "a very nice, childlike man with a lovely smile which he uses almost entirely inappropriately." Kelly talked in stream of consciousness, told Mazer the year was 1598 and called him "doctor" throughout the meeting. He also referred to the prison as "a technical college" and told Mazer he would be released "as soon as they cleared up a misunderstanding" with the department of unemployment in Sacramento. "It’s heartbreaking to sit there and listen to him," Mazer says. "He made very little sense." Mazer’s hope in filing the appeals — and it’s a long shot — is to get a state court to consider reducing Kelly’s sentence to life without possibility of parole. Since Mazer is filing his writs with the state, he cannot call into question the conduct that may have been the most damaging to his client — that of DeBlanc and Grace — because their work was conducted at the federal level. Within a week, David Fermino of the Public Defender’s office is planning to file a last-ditch pleading that may address that issue. But the clock is running.
Whether or not Kelly’s mental condition is grounds for sparing his life will be left to a panel of 12 residents of Marin County to decide. Last month, two of three San Quentin psychiatrists asked to determine whether he was sane enough to be executed said he was not, finding him "in a protracted and consistent course of deterioration." The third did not make a finding. Based on their reports, the San Quentin warden informed the Marin County District Attorney’s Office that he had reason to question Kelly’s sanity. Now, the district attorney has convened a juried sanity hearing, slated to begin on Monday, April 6, in Marin. Even if the jury finds Horace Kelly insane, he may receive only a temporary reprieve. He will be sent to a penal institution for the mentally ill "until he becomes sane" — a condition determined by an in-house psychiatrist and a judge — at which time he would be executed.
If Kelly’s fate comes down to a plea for clemency, his chances for escaping lethal injection are slim to none. Last summer, when the 9th Circuit issued an 11th-hour stay for convicted rapist-murderer Thomas M. Thompson on procedural grounds, Wilson and Lungren were furious. The governor accused the court of "flouting" the Antiterrorism and Effective Death Penalty Act, while the attorney general/future gubernatorial candidate called the stay "manipulative proceduralism." UC Berkeley’s Zimring says Thompson’s reprieve dramatically increases the likelihood that Kelly will be executed. "There are a lot of people in the Attorney General’s Office saying their rosaries that this is going to give them an execution," Zimring says. "Because the scorecard lately is bare."
All four executions that have occurred in California since the death penalty was reinstated in 1978 have taken place during Wilson’s watch. Three of the condemned men sought clemency, and all were denied. Kurt Schlichter, one of Kelly’s former attorneys, observes, "If this were Texas, it might be easier to get him off, because no one has to prove anything. No one is going to say Governor Bush is soft on crime because he let a crazy guy rot in prison for the rest of his life instead of sending him to the chair."
And although a Field Poll conducted last year found that 71 percent of Californians oppose execution of the mentally retarded (let alone someone who is insane), that is not likely to sway the governor. "The reservations Californians have about the particular ethics of executing a crazy person will not stand in the way," Zimring says. "The week after you do it, the only thing that is important is that you executed someone. It’s not a political loser for those who are pushing it." In fact, Wilson’s office has already contacted the victims’ families, laying the groundwork for execution number five. "They wanted to know if the governor should intervene," says Diana Pogue, Danny Osentowski’s mom. "I said no. Absolutely not. If he’s crazy now, that’s not our fault. If he did it, he should pay."
Whatever the outcome, it will hinge in large part on the judge and jury’s interpretation of the 1986 Ford vs. Wainwright decision. In delivering the opinion of the Supreme Court on that case, Justice Thurgood Marshall made it clear that executing the insane is cruel, unusual and unacceptable "whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance."
