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Death Row Reprieve

Photo by Eric Luse
Earlier this year, prosecutors sought to make death-row inmate Horace Edwards Kelly the first person in California history to be executed without a chance at a federal appeal. Now, the 9th Circuit Court of Appeals has ruled that Kelly will get his day in court, along with dozens of other death-row inmates affected by the decision.

Kelly has spent 14 years behind bars for three 1984 murders in San Bernardino and Riverside counties. He was scheduled to die by lethal injection in April, but his execution was delayed repeatedly, first to consider questions of his sanity (it is unconstitutional to execute an insane person) and then while the 9th Circuit decided whether Kelly’s case was entitled to federal review.

In a sharp rebuke of Attorney General Dan Lungren, who pushed hard for Kelly’s execution, 10 judges on the 11-member panel sided with Kelly. He "has never had a federal court rule on his constitutional claims," wrote Judge A. Wallace Tashima in the decision, filed on December 8. "It would be inappropriate for us to prevent that consideration merely to accommodate the State’s desire for a quick execution."

The ruling affects at least 40 other death-row cases in California, according to Dane Gillette in Lungren’s office, as well as cases in the rest of the 9th Circuit, the largest of the 13 federal circuits, which includes Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska and Hawaii. The attorney general plans to appeal the ruling to the U.S. Supreme Court, Gillette says.

In the U.S., anyone sentenced to death is entitled to a federal hearing, known as a writ of habeas corpus. The writ acts as a check on state courts, ensuring that the constitutional rights of prisoners are upheld. Between 1976 and 1991, the federal courts reviewed 361 habeas petitions for state prisoners on death row nationwide and found grounds to remand 144 of them.

In pressing for Kelly’s execution, the attorney general argued that Kelly forfeited his chance at a habeas petition because his attorneys missed a newly instituted filing deadline. Kelly’s attorneys countered that they could not file the petition, because Kelly was too insane to answer even the simplest of questions about his case. (Log books at San Quentin tell of Kelly storing rotting food in his cell, smearing feces on the walls and staring into space for hours on end.) Besides, they argued, Kelly was exempt from the deadline because his federal case was well under way before passage of the 1996 law, known as the Anti-Terrorism and Effective Death Penalty Act.

The 9th Circuit ruling opens the door for reconsideration of cases in which the federal appeal process was already under way when the law was passed.

When David Fermino, a supervising attorney in the Public Defender’s Office in L.A. and Kelly’s attorney, got word of the court’s ruling, his automatic reaction was to reach for the phone to share the news with his client. "But the fact is, in this case there’s no point," he says. "Because Horace Kelly has no idea what’s going on."

The issue of Kelly’s sanity is central to his petition. In an unprecedented six-week sanity trial in Marin County last spring, a series of mental-health experts (including those employed by the prison and appointed by the court) cited Kelly’s low IQ and disoriented manner in diagnosing him insane.

But the jury voted 9-3, without any deliberation, that Kelly was sane enough to be put to death. Several jurors interviewed after the trial said they relied on the testimony of the sole psychiatrist whose opinion that Kelly was sane concurred with their belief that Kelly’s death sentence should be upheld.

On Monday, Fermino filed the motion that clears the way for consideration of Kelly’s habeas petition in federal court. The petition claims, among other things, that Kelly’s original counsel was ineffective and that his confession, extracted in large part with the police tape recorder turned off, is invalid.

The petition does not claim that Kelly is innocent. Ideally, says Fermino, he would like to see Kelly’s sentence reduced to life without possibility of parole and his client moved to a penal mental institution.

But, Fermino says, such an action on behalf of a death-row inmate would be unprecedented in California, and possibly nationwide. The Kelly case, he says, points out one of the fundamental problems with the U.S. justice system: "It is unable to deal with severely mentally ill people."


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