Since Kelly's incarceration 14 years ago for killing two women and an 11-year-old boy, he has been examined by dozens of psychiatrists, all of whom have found him to be suffering from some degree of mental disturbance. After 1990, as Kelly's condition deteriorated, court records show that numerous doctors diagnosed him as having full-blown schizophrenia. Yet after two team examinations, one of the three San Quentin alienists says Kelly cannot be legally executed, another says he is competent for execution, and the third is flat undecided. Now, with the trial to determine Kelly's fate coming to a close, at least nine jurors are being asked to reach accord where three highly trained experts could not.
The senior alienist attending the two group examinations of Kelly was Roderick Ponath, chief psychiatrist at San Quentin. On the witness stand, Ponath, sporting the beard, spectacles and bow tie of the classic shrink, delivered his responses in a featureless monotone. Ponath told the court that when he asked Kelly why he was at the prison, the inmate responded, "Because of hospital reasons. The hospital did a new movement where everyone took on 25 names." When Ponath asked about the execution, Kelly first mentioned "my ticket to the gas chamber," but, Ponath said, when pressed for further explanation on the meaning of the word "execution," Kelly told him it meant "the day of processing payrolls."
Based on the two group meetings and a third exam Ponath conducted with Kelly on his own, the doctor found no "direct, sustained, organized responses" to demonstrate that Kelly understood that he was to be executed. He concluded that Kelly "does not communicate a sense that he comprehends that his being responsible for the deaths of three human beings in San Bernardino and Riverside counties in 1984 is the reason why he has been sentenced to death."
Like Ponath, Jeanne Hoff's reports are not based entirely on the two group visits. Hoff, a staff psychiatrist at San Quentin who tended to deflect tough questions with languid blinking and frequent smiles at the jury, told the court that on two other occasions she had gone back and examined Kelly on her own. She said that although his speech frequently derailed into nonsense, and although the word "execution" continued to "boggle" him, during these one-on-one encounters "his best was better than it was in the group interviews." Hoff said that during these private meetings Kelly was "engaged and responsive"; as an example, she told of an occasion when she asked him to place a piece of paper on the floor, and he responded by asking where exactly she wanted him to put it. There is no record of this response or of the questions she asked Kelly during these sessions, however, because she took no notes, instead recording her impressions later, from memory. Based on these interviews, she told the court, she refused to diagnose Kelly as schizophrenic and suspected that he would meet the legal standard of competency that would allow him to be executed. Yet she stopped short of reaching that conclusion, she said, because "so much hangs in the balance. All I have is a hunch."
The third alienist, a staff psychiatrist named S.C. Gibbs, had not testified as of this writing. After the first group meeting with Kelly, Gibbs wrote in a report to the warden that the inmate "does not satisfy the competency-to-be-executed standard." But after the second meeting, three weeks later, Gibbs changed his mind. His reversal seems to have been based almost entirely on his reported finding that Kelly "could respond appropriately and correctly to inquiries which did not bear directly on the topic of his impending execution." In explaining his changed opinion, Gibbs quoted Kelly referring to a "ticket to the gas chamber."
Curiously, Gibbs does not report that Kelly made that comment during the first group meeting, after which Gibbs found Kelly not competent to be executed. For some reason, between that first meeting and the second, Gibbs decided to reinterpret Kelly's initial remarks. Gibbs wrote that when asked, Kelly knew the date of his execution, but "did not acknowledge directly that such an event would result in the termination of his life." Even so, Gibbs finally concluded, Kelly "meets the criteria for proceeding with the execution."
Three psychiatrists, three different opinions. On one level, such disparities are not uncommon, says Ronald Markman, a Beverly Hills-based forensic psychiatrist for more than 30 years. Markman is also the author of Alone With the Devil, a book that chronicles his examinations of some infamous killers and reflects on the role of the psychiatrist in the courtroom. In the overwhelming majority of cases in which he has disagreed with other psychiatrists, Markman says, the split has come not on the medical diagnosis, but on the interpretation of the legal threshold. Even if every psychiatrist on the planet agreed that Horace Kelly is schizophrenic, for example, that diagnosis does not satisfy the legal requirement. In order for Kelly to be spared execution, he has to fail to understand either his sentence or the reason for it. But "What does the word 'understand' mean?" Markman wonders. "Words like that are open and subject to argument."
Differences can also arise as a result of external pressures or personal bias. In the case of Hoff, that is exactly what the defense wanted to establish. Out of the jury's presence, attorney John Grele described for the judge Hoff's handling of two previous cases involving mentally ill prisoners at San Quentin. In one instance, he said, a prisoner who had been diagnosed by other psychiatric staff as a paranoid schizophrenic became unruly in his cell and was pepper-sprayed by the guards. The prisoner was then taken to the infirmary, but Hoff denied him admittance as a psychiatric patient, instead asserting that he was a "management case." In another instance, prison guards reported to Hoff that an inmate was suicidal. After a five-minute phone call with the prisoner, Hoff told him she would see him the following day. Shortly after that conversation, the inmate jumped from the fourth floor tier of the prison, sustaining serious injuries. These two examples, Grele said, show that Hoff "has an anti-inmate bias at San Quentin, and an inability to distinguish when someone is presenting a mental illness to her and when someone is not."
Marin County Deputy District Attorney Ed Berberian argued against allowing the jury to hear about these cases, saying they were "unsubstantiated" and a "smear campaign." The judge sided with Berberian, saying, "I don't think that individual incidents can show a pattern in practice."
Hoping to clear things up, the judge presiding over the case appointed two independent psychiatrists to examine Kelly. Their conclusions? One found him competent for execution, the other not.
Ultimately, the decision about whether Horace Kelly is competent to be put to death will not rest with alienists or psychiatrists, but with a jury of nine women and three men with little or no training in the workings of the brain. Juries, Markman writes in his book, are "not often sophisticated enough to understand the expert testimony" of psychiatrists. In this case, the district attorney saw to it that any potential juror with a background in psychiatry was quickly removed from the jury pool, as were most jurors with an education beyond a high school diploma. Three of those who made it onto the panel did so after they explicitly told the court that they do not believe that insane people should be spared execution, despite a Supreme Court ruling that says they must.
And so, over the past several weeks, the jurors have been deluged with the details of schizophrenia and psychosis. It has not, perhaps, been a particularly welcome lesson. During especially involved explanations, two of the jurors tend to nod off. Another seems to doodle endlessly in a notebook, while still another spends a great deal of time staring at the ceiling.
Last week, a juror told the judge of overhearing other jurors speaking disparagingly about one of the psychiatrists hired by the defense. During more than an hour spent by the judge questioning each member of the panel individually, one juror told him that another juror had called the psychiatrist "Ms. Batting Her Eyelashes." Another juror remarked that the same psychiatrist seemed like she had had acting lessons; another said a juror had made "catty" comments; yet another overheard a juror likening the psychiatrist to Dr. Joyce Brothers in a "flippant" way. Richard Mazer, the lead attorney defending Kelly, called for a mistrial, but the judge simply admonished the jurors not to speak about the case until it is time to deliberate.