Supporters of the death penalty, including attorney general and gubernatorial candidate Dan Lungren, argue that execution is fair punishment for Kelly, who was sentenced to death for the 1984 murders of two women and an 11-year-old boy. Kelly's execution, they say, is long overdue. But an ancient state statute and a 1986 U.S. Supreme Court ruling forbid the execution of the legally insane. This trial, the first of its kind since the death penalty was reinstated in California in the 1970s, is meant to determine whether Kelly meets the legal definition of insanity, as stipulated by the Supreme Court.
Kelly's attorneys argue that the trial should not be taking place at all, that the state statute outlining sanity-trial procedures is so arcane and unclear that new legislation is needed to bring California into compliance with the Supreme Court's ruling. The defense battle will be difficult: Once an execution date has been set, the momentum is toward the death chamber. "The race is on," says Richard Mazer, Kelly's attorney. "The state can't get Horace Kelly executed fast enough."
It is Kelly's attorneys who carry the burden of proof. In order to save their client's life, they must convince at least nine of the jurors that "a preponderance of the evidence" shows Kelly to be so mentally impaired that he is, in the words of the judge's instructions to the jury, "unaware of one or both of the following: the fact of impending execution, or the reason for it." And so they have brought in psychiatrists to testify that Kelly is schizophrenic, psychotic and so impaired that he cannot sustain a train of thought for more than a few seconds at a time. And they have brought in prison guards who say Kelly sits for hours at a time, unmoving, staring at his cell walls. The guards have also testified that Kelly cannot identify or select food for his meals, cannot shower on his own, that he is known as "Smelly Kelly," that he has been known to mix his feces with hair and eggs, roll it into balls and smear it on his cell walls.
Marin County Deputy District Attorney Ed Berberian has the task of suggesting that Kelly might be faking, or that he has at least enough of his wits about him to be killed. There was one moment last week that showed just how awkward this role can be. It came when Berberian cross-examined a defense-appointed psychiatrist, pressing her to acknowledge that Kelly's understanding of death is akin to that of a 4 - to 6-year-old, and implying that such understanding would be sufficient to proceed with the execution.
Over the course of the trial, Marin County Superior Court Judge William T. McGivern has seemed tentative. A longtime prosecutor who was appointed by Pete Wilson to the bench just last fall and must stand for election on June 2, McGivern makes decisions only to reverse or modify them from one day to the next. At the start of the trial, he ruled that "the district attorneys of the counties where the death verdict against Mr. Kelly was obtained shall not be allowed to appear and argue these proceedings." Days later, he changed his mind and is now permitting Kevin Ruddy, the supervising deputy district attorney for Riverside County, to work alongside the Marin County district attorney on the case. McGivern also ruled that his court could not change the date of execution, which was set for April 14. But that date came and went as the trial slowly moved along, and this week McGivern agreed with the state attorney general that a new execution date could be set.
This Friday afternoon, a hearing is scheduled in San Bernardino to set the date. The district attorney, at the behest of Lungren's office, has requested June 2 - which also happens to be the date of both the balloting on McGivern and the gubernatorial primary in which Lungren is running as a law-and-order candidate. If the June 2 date is granted and Kelly is executed, his death - and Lungren - will be at the top of the news on election Tuesday.