SAN RAFAEL In firm, measured tones, the attorney for convicted murderer Horace Edwards Kelly told a Marin County jury this week that his client has a "broken brain" that has left him cut off from reality and therefore unable to be legally executed.
The trial to determine whether Kelly is sane enough to be put to death got underway Tuesday after a week-long jury-selection process. In his opening statement, defense attorney Richard Mazer argued that Kellys behavior during his incarceration at San Quentin provides ample evidence of severe mental illness. During his imprisonment for the murders of an 11-year-old boy and two women 14 years ago in San Bernardino and Riverside counties Kellys condition has worsened, Mazer said. He described his clients habits of singing, rocking and staring at the walls of his cell, hoarding food in his toilet, rolling his feces into balls and clothing himself in togas made of bed sheets. Kelly, Mazer said, has "a longstanding major mental illness characterized by psychosis and impaired brain function." The first witness to take the stand, Roderick W. Pettis a San Francisco-based psychiatrist appointed by Judge William McGivern, who is presiding over the case affirmed Mazers assessment, diagnosing Kelly as schizophrenic and likening his mental state to that of a person stuck in the midst of a "really bizarre dream." During a 90-minute examination earlier this month, Pettis told the court, he found Kelly to have "severe impairment in reasoning, abstract thought and judgment." Kelly, Pettis said, is "unable to grasp the concept of death, the concept of punishment, the concept of execution." The testimony addressed key issues, as the central legal determination jurors must make is whether or not Kelly is capable of understanding his situation. Throughout Pettis testimony, as through all of the court proceedings, Kelly, whose history of severe mental problems dates back to his childhood, sat quietly, shackled to his chair, sometimes closing his eyes, looking around or smiling, but mostly looking off into the middle distance. The jury that will decide Kellys fate is made up of nine women and three men, culled from a pool of about 150 Marin County residents. Kellys attorneys argued strenuously that because the trial is meant to determine their clients sanity and not the larger question of whether he should be executed, jurors should not be "death qualified," that is, eliminated from the pool if they oppose the death penalty. But the judge disagreed, and all jurors opposed to executions were eliminated early on. Eleven of the jurors are white; one is Asian. If put to death, Kelly would be the first African-American put to death in California since 1967. Regarding the question of mental competency, five jurors said they did not know whether it should affect the status of an execution, three said it should not, and four said they believed it should. A 1986 U.S. Supreme Court ruling held that a person cannot be put to death unless he understands that he is to be put to death, and why. After being told of this ruling, one juror said, "If they were already convicted and they were sane when they were convicted, then thats what should matter." During Kellys incarceration at San Quentin, his attorneys estimate, he has been examined by upwards of 50 psychiatrists and other mental-health experts, most of whom have found him to be seriously mentally ill. Last month, psychiatrist Michael Radelet examined Kelly for the defense and found him "totally incomprehensible," comparing him to Alvin Ford, the inmate whose life was spared in the 1986 Supreme Court ruling. In his report, Radelet says that when he asked Kelly what happens to dead people, the inmate responded that "some come alive, some have false identities, some stay with different faces or changed applications." Kelly told another psychiatrist, "I get lethal injection once a year. You get lethal injection whenever you get in accidents or taken to the hospital, or when doctors take application representing their jobs." It is expected that prosecutors, who began their cross-examination of Pettis on Tuesday, will try to draw a fine distinction between Kellys mental illness and the sort that would preclude execution. Attorneys estimate the trial will last a week or more. In order for a verdict to be reached, at least nine jurors must agree. If they find Kelly insane, he will be sent to a penal mental institution until he becomes sane enough to be executed. The last time a jury found a condemned prisoner insane was in 1949. After the decision, murderer Erwin M. Walker was held until 1961, when a psychiatrist pronounced him sane and a judge agreed. Walker was set to be executed in March of that year, but was pardoned by then-governor Pat Brown. Governor Pete Wilson has not issued a single clemency during his tenure and has been an outspoken supporter of a new federal law making it tougher for death-row inmates to file federal writs of habeas corpus. Such petitions, which take up questions of violations of constitutional rights, are considered the last, best hope for inmates on death row. Kelly never got to file such a writ because his previous attorneys failed to meet the deadline imposed by the new law. If Kelly is found insane, the court and the prison will have to grapple with the ethically tricky question of whether to attempt to medicate him to make him sane enough to put to death. Throughout his incarceration, Kelly has refused to be medicated, but San Quentin psychiatrist Jeanne Hoff, who examined Kelly earlier this month, urged that he be forced to take medication to make him sane enough to be executed. "If he is found to be so impaired by mental illness as to require a stay of execution," Hoff wrote, "I believe there is an ethical responsibility finally to provide us with the legal right to give appropriate anti-psychotic medication involuntarily."