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Last Rights 

Convicted murderer Horace Kelly is scheduled to be put to death in less than two weeks despite a Supreme Court ban on executing the insane. Why? His lawyers failed to file his federal appeal.

Wednesday, Apr 8 1998
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just not myself," Kelly later wrote of his state at the time. "If I didn’t get help soon somebody was going to be hurt."

On September 9, 1984, Kelly went to a local gun shop and bought a 4-inch Dan Wesson .357 heavy-barrel revolver, which, over his wife’s protestations, he began carrying with him at all times. It was important to have the gun, he told her, for protection and because he felt it enhanced his stature in his new job as a security guard. "I felt I should be somebody on this job and try to better myself," Kelly later wrote, but then added, "Power be-hind that gun but only evil and wickedness."

For six days after his arrest, Horace Kelly was held and questioned by police, by the district attorney and by a government-appointed mental-health expert. His first confession came in the early-morning hours the day after Danny was shot. Sitting in an interrogation room at the Riverside County Sheriff’s detective bureau, with no lawyer of his own present, Kelly repeatedly denied shooting anyone. As a tape recorder rolled, the detectives asked Kelly if his mother had given him a "Christian upbringing" and how he would be viewed by God and his family for killing an 11-year-old boy. Kelly again denied that he did it. The detectives turned off the recorder. Forty minutes later, when the recorder was turned back on, Kelly, in a sobbing voice, recounted what had happened that night. He told the detectives that at the time of the shooting he had been gripped by pain, and "When I get in these, these stages or something . . . I be mad at myself. I want to do things to myself and things I don’t even know what I am doing." When that happens, he told them, "I always wind up with the gun in my hand."

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Horace Kelly was tried twice, first in Riverside for the killing of Danny Osentowski and then in San Bernardino for killing and attempting to rape Sonia Reed and Ursula Houser. Since the fact that Kelly had committed the crimes was not in dispute, his attorneys focused their efforts on the question of his sanity. In a series of tests conducted over the course of two months, Alfred Kanzler, a clinical neuropsychologist, found that Kelly had cerebral dysfunction on the right side of his brain, which impaired his attention, memory, verbal fluency and "cognitive flexibility." Kelly’s IQ was 77, and both his ability to concentrate and his short-term memory were in the bottom 2 percent of the population. A CAT scan revealed atrophy in Kelly’s parietal and temporal lobes. Jerry Hoyle, a court-appointed clinical psychologist from Loma Linda University, explained to the court that the parietal lobe works like a TV tuner. When it malfunctions, a person’s perception of and reaction to reality get distorted. In addition, Kelly had damage to his frontal lobes. This is the part of the brain that enables people to function within society — helping control the impulses that provide judgment, proper behavior and decision making. Damage, Hoyle said, often creates "an all-or-nothing situation" wherein the person either totally withdraws, or overreacts and loses control. In such a mind, Hoyle said, "Once an activity begins, it must run its course." Hoyle found Kelly to be "schizotypal," exhibiting at least six out of the eight characteristics associated with the personality disorder, including magical thinking, social isolation, recurrent illusions and delusions, odd speech, inadequate face-to-face interactions, and social anxiety and hypersensitivity.

In preparation for the Riverside trial, a San Quentin staff psychiatrist named John Dupre conducted a routine exam of Kelly. After a single 50-minute interview, he found Kelly "alert" and "appropriately groomed." Dupre found "no evidence of psychosis, major affect disorders or cognitive deficits." He said Kelly had "pedophilic tendencies and antisocial features of sexual exploitiveness" and that his "violence potential is above average for a condemned inmate." He concluded, "There is no indication, at present, to indicate a disease or defect that will impair the inmate’s capacity to serve a death sentence." This finding, by an in-house prison psychiatrist, was not surprising. "I have seen people who were pretty out there, and the prison staff does not budge," says Jay Pultz, a criminal attorney with a background in mental health who has several clients on death row. "It is incredibly rare for them to actually find someone insane."

In September of 1986, the jury in Riverside found Kelly guilty of first-degree murder during commission of a kidnapping with the use of a firearm. They imposed the death penalty. Two years later, a San Bernardino jury ruled Kelly to be legally sane, found him guilty of murder and rape (reduced on appeal to attempted rape), and sentenced him to death. Over the next six years, an ever-changing stream of attorneys pushed Kelly’s case through the appeals process, arguing that their client was insane and that he had received inadequate defense. Despite subsequent findings of insanity by both San Quentin staff and a defense-appointed mental examiner, they were rebuffed at every turn.

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