The Alienists

SAN RAFAEL - In late March and early April, a trio of staff experts gathered in a San Quentin meeting room, notebooks in hand, pencils at the ready. Facing them, shackled hand and foot, his expression vacant and bemused as ever, was condemned inmate Horace Edwards Kelly. Each of the three experts was trained and accredited as a psychiatrist, but for this exercise, they were working as alienists - an obsolete term for specialists in criminal mental health that dates from the time of public hangings, but which is still used at the prison to designate the professional staff who conduct pre-execution exams to determine whether a convict is sane enough to be put to death.

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."