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Killing Joke 

For jurors, Kelly trial lasted way too long

Wednesday, May 20 1998
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San Quentin does not coddle inmates, especially those facing execution. For the condemned, every prison rule — from the complete segregation of condemned inmates to a ban on their handling money or holding even the lowliest prison job — reinforces the message that their sole function is to wait for death.

So it was all the more remarkable in March when Warden Arthur Calderon made a decision — one that no warden had reached in 47 years — that a condemned inmate was of such questionable sanity that he could not be executed without a hearing. And it was all the more disturbing when nine members of a jury last week took less than 90 minutes to override the concerns of the warden and several prison guards, and the opinions of six of the seven mental-health experts who testified, to find that convicted murderer Horace Edwards Kelly is sane enough to die.

"To me, the most distressing thing is that there are nine people who could look at this case and, with a clear conscience, say, ‘Execute this man,’" said Lance Lindsey, executive director of the San Francisco–based Death Penalty Focus. "In the end, it’s not about Horace Kelly. It’s about the people making that decision."

Jurors who spoke to the Weekly after the verdict said it was not difficult to find Kelly sane, and that they had made up their minds long before they reached the jury room. One juror, an 18-year-old mechanic who asked that his name not be used, expressed contempt for the U.S. Supreme Court’s ban on executing the insane, calling it "a bunch of baloney." He added that "anybody locked up in a tiny cell for 13 years with no windows and no contact with the outside world is going to go crazy," but that such a condition is no reason to stop an execution. The juror, whose employer refused to pay him during jury duty, said the trial, which took more than five weeks, was "a joke" that took "way too long."

Throughout the trial, several jurors had complained to the judge about the length of the proceedings. During complicated defense testimony, some doodled, dozed or stared at the ceiling, and several took no notes at all. When there were breaks in testimony, jurors vented their frustration by assembling a miniature version of the Titanic, which they hung upside down in the deliberating room. An alternate who works as a graphic artist drew tiny portraits of each of the jurors, then tacked them onto the deck of the sinking ship.

When the jurors were sent to deliberate after lunch last Thursday, they selected a foreman and immediately took a vote. Without any deliberation, nine jurors — the minimum needed to render a verdict — said Kelly was sane. During two subsequent votes the majority did not waver. "We may have been swift, but we had a lot of time to think about it during the trial," said Ethel McVae, a 74-year-old juror who dismissed much of the psychiatric testimony detailing Kelly’s severe mental impairment as "too textbook." McVae said she and other jurors had based their decision partially on the fact that Kelly, who was in the courtroom for the six-week proceeding, "met our eyes continually. There wasn’t any great display, but then I wouldn’t have made any great display if I were in his position either."

Peter Arenella, a UCLA law professor who specializes in mental illness and criminal law, said such juror observations are distressing, but not surprising. "The sad fact is that the average juror has no understanding of, or interest in understanding, what it means to be mentally ill," Arenella said. "It is an issue that is very difficult for juries to take seriously." Kelly, who is 38, was convicted of killing three people over a six-day period in the fall of 1984. At the time of the killings he had no previous criminal record and was working as a security guard in San Bernardino. His low IQ and spacy, withdrawn manner had been documented in school records and noted by family and friends, as had the extreme physical, sexual and emotional abuse he endured as a child. But there was no indication of the severity of Kelly’s disturbance until he shot and killed Sonia Reed, Ursula Houser and 11-year-old Daniel Osentowski.

After Kelly’s convictions, his case limped through a series of perfunctory appeals, culminating with the failure of his former attorneys, Al DeBlanc and Eugene Grace, to meet the deadline to seek a federal hearing on his behalf. They said there was no way they could file, because Kelly was so incoherent that he was useless in assisting them. But by not filing this petition, they effectively bumped their client to the top of the list of potential executees. With no stay in place and no appeal pending, there was nothing standing between Kelly and death — until Warden Calderon stepped in. His concern over Kelly’s mental state spurred California’s first pre-execution sanity trial since 1951.

Calderon’s request for a sanity hearing was based in large part on reports from guards and doctors detailing Kelly’s mental deterioration during his incarceration. Most of the time, witnesses testified, Kelly lies on his cot or crouches in his cell, sometimes dressed in dirty bed sheets, his head wrapped in a turban. He refuses to flush his toilet or bathe, and stores old food in piles around his cell. He has mixed his feces with egg and hair, rolled it onto balls, and stored it in cups on the sink or smeared it on the walls. He is known by both guards and fellow inmates as "Smelly Kelly." He does not speak unless spoken to, and then generally gives responses that are either monosyllabic or a parroted mish-mash of numbers, legal terms and bureaucratese.

When a prison psychiatrist in April asked him to define execution, Kelly said, "My ticket to the gas chamber," but then was unable to explain what it meant. When a defense psychiatrist asked him what crime he’d committed, Kelly answered, "I’m here to go to college because of courtroom unusual projects because of hospitals. I am on delayed punishment. Throw the book at me, correct it later, another CC then 00." The psychiatrist then asked him if his crime was murder. He answered, "As testament of names, verses." When asked a second time, he responded, "Two years and a month."

In his closing argument, Richard Mazer, Kelly’s lead attorney, reminded the jury of the Supreme Court’s ruling against executing the insane. He told them of the decision’s deep roots in U.S. and British social and legal traditions, explaining, "You can’t make peace with God if you’re insane. You can’t ask forgiveness of the victims or society." Executing Horace Kelly, he said, offers "no retribution or societal satisfaction" and has "no spiritual or religious reason."

But the jury was unimpressed with Mazer and his scrappy, combative style, preferring what juror McVae called Deputy District Attorney Ed Berberian’s "down-home demeanor." In his closing argument, Berberian dismissed terms like "psychosis" and "schizophrenia" as "labels," urging jurors to use their "common sense" to find Kelly sane. Berberian had used several of his peremptory challenges to eliminate any jurors with a background in psychiatry, a shrewd move because he had to convince the jury that one psychiatrist — Diane McEwen, the lone expert who testified that Horace Kelly is sane enough for execution — was more reliable than all the rest.

Peering over her reading glasses and often speaking directly to the jury, McEwen alone said she thought Kelly might be faking his insanity, that he had talked in an easy manner, told her the names and ages of his victims, chatted with her about his childhood, and beat her in tic-tac-toe two games out of five (the other three were a draw). She dismissed his garbled speech as "run-on productions" that she could get him to snap out of by simply telling him to stop. She said she asked Kelly what he would do on the day before his execution, and he told her he would "sit around and wait." She also told the court that she had Kelly read aloud the court order regarding his execution.

Mazer tried to discredit McEwen by pointing out numerous discrepancies between her report and her notes, which she refused to hand over until the judge ordered her to. Her notes, for example, showed that when she asked Kelly the significance of April 14 (his original execution date), which he had written on a piece of paper along with several other numbers, he told her, "Superman, spy man numbers." When she asked him about his execution, he said, "Over property against family versus other families to do with education." None of this made it into her report, or into her testimony on direct examination.

But Mazer extracted this information at a price. The 18-year-old juror called Mazer "desperate to find anything," and McVae said she and other jurors were offended by Mazer’s aggressive tactics. The other psychiatrists "were all big kahunas in the psychiatric field," McVae said. "I think Dr. McEwen is comparatively what we might call a small fish. She was very sincere."

Several other jurors said it was McEwen’s testimony that had swayed them, and that questions about her credibility were of no concern. "She had a way of putting things that I could really understand," said Robert Mountanos, the 38-year-old son of a former Marin County sheriff. "The others got caught up in complicated theories that I had trouble understanding." Mountanos said he agreed that Kelly is "definitely not well," but concluded that "he is conscious enough to know what’s going on. He’s there." Another juror, Mary Grinbergs, a 26-year-old administrative assistant, said McEwen "was the only one who dealt with him on a person-to-person basis." About Kelly’s June 9 execution date, Grinbergs said, "I can’t really go there. To think of these things would drive me crazy."

The jury foreman, Michael Aiello, a single dad who works in the high-tech industry, cast one of the dissenting votes. "The evidence clearly shows that he is insane," Aiello said. "I’m kind of shook up about this." He took three ballots, but quickly discovered that the other jurors had no intention of changing their minds. "It was easy for some of the jurors," he said. "It wasn’t easy for me."

Kelly’s attorneys, who have several appeals pending on his behalf, are now seeking a stay of execution from the California Supreme Court. If they cannot get one there, they will try to get one from a federal court. But even if they manage to get a stay on the June 9 execution date, their worries are far from over. Attorney General Dan Lungren, a hard-charging death-penalty advocate who stands to benefit from presiding over an execution during his bid for governor, has helped secure a backup execution date for Kelly — July 7 — in case the June date falls through.

In the meantime, a Supreme Court ruling this week on an Arizona case may help revive efforts to finally get Kelly a federal hearing. In the decision, the court said that a death-row inmate is entitled to a hearing before a federal judge to determine whether he is sane enough to be executed. Maria Stratton, the federal public defender in Los Angeles, said her office is working on Kelly’s federal appeal. The Arizona ruling, she said, "gives us some comfort" that Horace Kelly may not be executed before he has a chance to make his case before a federal judge, as most death-row inmates do.

As the verdict was read in court last Thursday, Kelly sat shackled to his chair, as he has throughout the trial, in his pressed blue shirt and jeans, staring off into the distance. As the few remaining spectators filed out of the courtroom and the guards prepared to take Kelly back to his San Quentin cell, Mazer gave his client a comforting pat on the back. Kelly turned to him, grinned, and said, inexplicably, "Court five. Court five."

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