On a brilliant spring day in 1996, flanked by American flags on the White House South Lawn, President Clinton signed the Antiterrorism and Effective Death Penalty Act. "From now on," he told the gathered citizenry as a military band stood by, "criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences. And families of victims will no longer have to endure years of anguish and suffering."
Across the country, filthy and unresponsive, a 36-year-old black death-row inmate named Horace Edwards Kelly huddled unmoving in a corner of his San Quentin cell, almost certainly unaware of Clintons new law and the impact it would soon have on his life. Kelly, who was condemned for killing two women and an 11-year-old boy 12 years earlier, was severely mentally ill. His condition today is much the same: His face is frozen in a vacant smile, his hair unkempt and nails uncut. He seldom bathes or uses the toilet, and an awful stench emanates from his cell. Shortly before the laws enactment, a court-appointed psychiatrist diagnosed Kelly with "a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position." Last month, when asked by his attorneys if he understood his situation, he said that he was not concerned because hes "had numerous executions in the past, and they havent done him any harm."
But if all goes as planned, Kelly will be put to death on April 14 without his case ever having been considered in federal court and despite a Supreme Court ruling that expressly forbids the execution of an insane person. If his execution is carried out, Kelly will become what some legal experts fear will be the first of many casualties of the Antiterrorism and Effective Death Penalty Act. "Cases are going to be pushed through without adequate preparation," says Maria Stratton, Federal Public Defender in Los Angeles. The act "certainly increases the possibility that someone is going to be wrongly executed."
Kelly should have had, like virtually every U.S. prisoner sentenced to death, a federal review of his case. But his attorneys failed to meet the new laws one-year deadline for filing a federal writ of habeas corpus. Rooted in the Magna Carta and codified in the wake of the Civil War, federal writs of habeas corpus (from the Latin, meaning ä "you are to produce the body") guarantee a fundamental check on the penal process, giving the federal courts the chance to catch state errors that could send the truly innocent or the clearly insane to an unjust end. Between 1976 and 1991, the federal courts reviewed 361 habeas petitions for state prisoners on death row nationwide and found constitutional grounds to reverse 144 of them. Given this 40 percent reversal rate, it would be hard to overestimate the writs importance in capital cases.
There is no question that Horace Kelly killed three people and that his were heinous crimes. The mother of at least one of his victims wants to see him dead, and even his own attorneys have no interest in getting Kelly released from prison. But many who are familiar with the Kelly case feel his execution would be a gross miscarriage of justice. Horace Kelly is the first person slated for execution since the death penalty was reinstated in California in 1978 whose sanity is seriously in question. He is also the first to have had no federal appeal. "To say, Well, you may be crazy, but too bad, you missed your deadline is putting the form over the substance, the procedure over the person," says Richard Dieter, executive director of the Washington, D.C.based Death Penalty Information Center. "To do that when a persons life is at stake is tragic."
Horace Kellys life of crime was brief and gruesome. For 24 years he had stayed out of trouble with the law. Then, with no visible warning, he snapped, killing three people over a six-day period in the fall of 1984.
The morning of Friday, November 16, was warm and clear when Horace Kelly woke up before dawn to drive his stepson to work at a San Bernardino meat-processing plant. On his way home, he picked up a 25-year-old woman named Sonia Reed, who was hitchhiking after freebasing cocaine with a friend. In a secluded grove in a nearby cemetery, Kelly attempted to rape Reed. He then shot her twice at close range, killing her. The next morning, Kelly again arose in darkness to take his stepson to work. On his way home, he encountered Ursula Houser, a 43-year-old woman who had been dropped off in the neighborhood after a night of drinking and playing pool. Kelly fatally shot Houser behind her left ear. He then dragged her several feet and tried to rape her. When police found Housers body a short time later, she was naked from the waist down.
The following Thursday, Thanksgiving Day, Horace Kelly had an early dinner with his wife and family, put on his tan security-guard uniform and headed to his post at a construction site in western Riverside County. In the early evening, he drove to a nearby convenience store for coffee. About the same time, 11-year-old Daniel David Osentowski, who had finished his Thanksgiving dinner with relatives, decided to walk to a neighborhood store to buy candy with his 13-year-old cousin, Shannon Lee Prock. As they headed home along a deserted stretch of road, they saw Horace Kelly walking toward them from an idling van. Kelly passed the two, then suddenly grabbed Shannon around the neck, pushing his gun into her side. As Kelly dragged the girl toward his van, Danny began kicking him, causing him to loosen his grip. Shannon wrested herself free and scaled a nearby concrete wall surrounding the housing development where she lived. When she reached the top, she heard shots, and then her cousin pleading for his life. "Dont shoot me again," he begged. Kelly shot Danny Osentowski twice, first in the right side of his chest and then, at close range, in the right side of his face.
Now Dannys mother, Diana Pogue, wants Kelly to meet the same end. "I think he should be shot down, just like he did my son," she said. "Justice is justice, and it will prevail."
Even before his birth on November 20, 1959, Horace Kelly was marked for a hard life. The details, spelled out in voluminous court records, are grim. His mother, Phyllis Kelly, drank heavily during pregnancy and was suffering from a bacterial infection when Horace the first of her eight children arrived three months premature. He weighed just 28 ounces and had a heart murmur, but after hed spent the first two and a half months of his life in a Vineland, New Jersey, hospital, the doctors sent him home.
A year later, the family moved to Germany, where Horace Kelly Sr., an Army officer, started beating his infant son, to the point where the 14-month-old boy would run and cry whenever his father walked in the door. Eventually, according to court documents, Horace Sr.s behavior got him arrested. But no charges were pressed, and the beatings continued, leading the Army to reduce his rank and return him to the States, where he soon left the military altogether. Back in New Jersey, Horace Sr.s violent behavior escalated. After Horace Jr. was circumcised, at age 3 and a half, his mother, following the doctors advice, regularly soaked the boys penis in tepid water. Once, when the water was too hot, Horace began screaming. His father forced his sons penis into the scalding water and then slammed him headfirst against a wall. After that, Phyllis Kelly later told her sons attorneys, Horace would periodically fall into trances, stopping in the middle of an activity to stare into space. He would also lie in his bed with his teeth chattering. When she tried to talk to him during these episodes, he would not respond.
The years passed, and the abuse became uglier and more frequent. In one drunken fury, Horace Sr. threw his son down the cellar stairs, breaking both the boys legs and one hip. "I was scared up badly and felt I lost my mind or unconscious," Horace Kelly wrote to his attorneys shortly after he was imprisoned. "I had to learn how to walk over again. Dad seemed he didnt care too much." At other times, he said, his father abused him sexually, fondling his penis, forcing him to have oral sex and raping him anally. "He said he would hurt me more if I told anybody," Horace Jr. wrote. "I wanted to hurt dad cause he treated us bad." Finally, when Horace was 8, a fire destroyed the Kelly home. Phyllis Kelly moved her eight children into a bat-infested farmhouse in rural New Jersey, and her husband left for good. A year later, when Horace Kelly Sr. was killed during a fight with a neighbor over a woman, his son did not cry.
Upon his fathers death, Horace Kelly, then 9, became the man of the family, even donning his dead fathers clothes. After long days working the fields or selling newspapers and flower seeds, he scavenged grocery-store discards and turned them over to his mother. Phyllis Kelly, a devout Pentecostalist, continued to set food out for her husband and pray for his return, even after his death. She ran a strict household, forbidding the children to listen to music or bring friends over, forcing them to dress up for school and locking them out if they came home late. When they disobeyed, she tied their arms to a post and beat them.
Among the Kelly children, Horace was the most compliant. Of medium build, with dark hair and eyes and an easy smile, he went to church with his mother twice a week and wore suits to school. His passive demeanor made him an obvious target, and other children often bullied him. "I was always being hit on, laugh at, push around from home to school to church," he wrote. "People all kinds they only wanted to hurt me." But "I was no trouble to anybody." This excessive obedience could not mask the fact that Horace was unable to keep up with his schoolwork. He repeated two grades, and by the time he got to high school, a learning-disability specialist said his general knowledge was that of a fifth-grader. A school social worker found him to be "deeply insular" and recommended that he seek therapy. A school psychologist found his verbal skills "borderline mentally defective." The psychologist noted Horaces overly formal appearance
and found him to be "a loner, unhappy, someone who didnt relate well to other students."
Horace seemed more at ease on the job. A 10th-grade teacher who oversaw him in a work-study program said the teen had a "tremendous work ethic." His supervisor at a nursery school where he helped care for 30 youngsters found him "gentle, dedicated and loved by the children." In 1981, Phyllis Kelly decided to move to California. Soon after, having been jilted by his first serious girlfriend, Horace followed.
Shortly before Horace Kelly arrived in California, the political force that eventually enabled passage of the Antiterrorism and Effective Death Penalty Act began gathering momentum. Spurred by the Supreme Courts broadened interpretation of habeas writs, prisoners had begun inundating federal judges with such petitions. Many of these requests were filed by prisoners who were ultimately found to be wrongfully incarcerated or improperly sentenced to death. But many more were futile stabs at unwarranted relief, often written in pencil by prisoners themselves.
Reviewing this incessant flood of paperwork was costly and time-consuming, and the families of some victims, especially in death-penalty cases, protested that the habeas writ was just another layer of appeals that ended up delaying executions interminably. As the membership of the Supreme Court became more conservative, it slowly began tightening habeas restrictions. (In 1972 the Court had found the death penalty unconstitutional, but in 1976 the Court issued another ruling allowing the practice in certain circumstances. Many states, including California, quickly re-enacted it.) In 1991, the Supreme Court ruled that prisoners were no longer allowed to file multiple petitions from then on they would get just one bite from the apple.
For Attorney General Dan Lungren, then a California congressman, curbing habeas appeals became a major crusade. As a member of the House Judiciary Committee, he worked with then-President Reagan, drafting legislation that would eventually form the basis for the 1996 law.
After Kelly arrived in San Bernardino in 1982, he assumed a Jamaican accent, stopped bathing and wearing shoes, and grew his hair Rastafarian-style. For a while he lived in a park, subsisting on the money he collected from scavenging newspapers and cans. Occasionally he went to church, where he met Darlene Rush, who operated a board-and-care home for the mentally retarded. When Kelly told her that he had no parents or family and needed a place to stay, she took pity on him, giving him a free room in exchange for cleaning and maintenance work. He was, she said, a "tremendous worker." During the two years that Kelly stayed with Rush, she later told investigators, he told her that he was a werewolf, would howl to the ä moon, and frequently complained of severe head pains. Nonetheless, she generally considered him harmless.
Kelly often told Rush that he wished to get married and have a family, and in 1983, when he was 24, she introduced him to Christine Fields, who at 44 was the same age as his mother. Kelly liked her immediately and the two were soon married and had a daughter. Christine Kellys five children, ranging in age from 26 to 15, were not as accepting of their new father. The house they all shared was filled with tension, and Horace Kellys headaches became more frequent and more intense. He started having flashbacks to his childhood beatings, and pain would travel through his body. He would sweat profusely, his wife later told investigators, and his head would swell. At least once, during such a spell, Kelly lost consciousness. Other times he could not remember things he had said or done while stricken with pain. He took large quantities of Tylenol and other over-the-counter pain relievers but did not seek medical help. "Sometime I felt insane,
just not myself," Kelly later wrote of his state at the time. "If I didnt get help soon somebody was going to be hurt."
On September 9, 1984, Kelly went to a local gun shop and bought a 4-inch Dan Wesson .357 heavy-barrel revolver, which, over his wifes protestations, he began carrying with him at all times. It was important to have the gun, he told her, for protection and because he felt it enhanced his stature in his new job as a security guard. "I felt I should be somebody on this job and try to better myself," Kelly later wrote, but then added, "Power be-hind that gun but only evil and wickedness."
For six days after his arrest, Horace Kelly was held and questioned by police, by the district attorney and by a government-appointed mental-health expert. His first confession came in the early-morning hours the day after Danny was shot. Sitting in an interrogation room at the Riverside County Sheriffs detective bureau, with no lawyer of his own present, Kelly repeatedly denied shooting anyone. As a tape recorder rolled, the detectives asked Kelly if his mother had given him a "Christian upbringing" and how he would be viewed by God and his family for killing an 11-year-old boy. Kelly again denied that he did it. The detectives turned off the recorder. Forty minutes later, when the recorder was turned back on, Kelly, in a sobbing voice, recounted what had happened that night. He told the detectives that at the time of the shooting he had been gripped by pain, and "When I get in these, these stages or something . . . I be mad at myself. I want to do things to myself and things I dont even know what I am doing." When that happens, he told them, "I always wind up with the gun in my hand."
Horace Kelly was tried twice, first in Riverside for the killing of Danny Osentowski and then in San Bernardino for killing and attempting to rape Sonia Reed and Ursula Houser. Since the fact that Kelly had committed the crimes was not in dispute, his attorneys focused their efforts on the question of his sanity. In a series of tests conducted over the course of two months, Alfred Kanzler, a clinical neuropsychologist, found that Kelly had cerebral dysfunction on the right side of his brain, which impaired his attention, memory, verbal fluency and "cognitive flexibility." Kellys IQ was 77, and both his ability to concentrate and his short-term memory were in the bottom 2 percent of the population. A CAT scan revealed atrophy in Kellys parietal and temporal lobes. Jerry Hoyle, a court-appointed clinical psychologist from Loma Linda University, explained to the court that the parietal lobe works like a TV tuner. When it malfunctions, a persons perception of and reaction to reality get distorted. In addition, Kelly had damage to his frontal lobes. This is the part of the brain that enables people to function within society helping control the impulses that provide judgment, proper behavior and decision making. Damage, Hoyle said, often creates "an all-or-nothing situation" wherein the person either totally withdraws, or overreacts and loses control. In such a mind, Hoyle said, "Once an activity begins, it must run its course." Hoyle found Kelly to be "schizotypal," exhibiting at least six out of the eight characteristics associated with the personality disorder, including magical thinking, social isolation, recurrent illusions and delusions, odd speech, inadequate face-to-face interactions, and social anxiety and hypersensitivity.
In preparation for the Riverside trial, a San Quentin staff psychiatrist named John Dupre conducted a routine exam of Kelly. After a single 50-minute interview, he found Kelly "alert" and "appropriately groomed." Dupre found "no evidence of psychosis, major affect disorders or cognitive deficits." He said Kelly had "pedophilic tendencies and antisocial features of sexual exploitiveness" and that his "violence potential is above average for a condemned inmate." He concluded, "There is no indication, at present, to indicate a disease or defect that will impair the inmates capacity to serve a death sentence." This finding, by an in-house prison psychiatrist, was not surprising. "I have seen people who were pretty out there, and the prison staff does not budge," says Jay Pultz, a criminal attorney with a background in mental health who has several clients on death row. "It is incredibly rare for them to actually find someone insane."
In September of 1986, the jury in Riverside found Kelly guilty of first-degree murder during commission of a kidnapping with the use of a firearm. They imposed the death penalty. Two years later, a San Bernardino jury ruled Kelly to be legally sane, found him guilty of murder and rape (reduced on appeal to attempted rape), and sentenced him to death. Over the next six years, an ever-changing stream of attorneys pushed Kellys case through the appeals process, arguing that their client was insane and that he had received inadequate defense. Despite subsequent findings of insanity by both San Quentin staff and a defense-appointed mental examiner, they were rebuffed at every turn.
If Kellys attorneys were unable to secure legal relief, evidence of his insanity was nevertheless mounting. He stored bags of rotting food in his cell, smeared the walls with feces and wandered into the prison yard in the pouring rain without shoes or a shirt. He maintained an almost constant smile, even though his hair was so covered in lice that anyone who came near him was infested. When his mother went to visit, he fully expected to go home with her. In January of 1990, even an in-house psychiatrist at San Quentin diagnosed Kelly with a
psychotic disorder and a schizotypal personality. The examiner found Kelly to be "delusional with inappropriate affect, preoccupation, confusion, marked loosening of associations, bizarreness, fragmentation and illogical thinking." In September of 1991, at the request of Kellys appellate counsel, Dorothy Otnow Lewis, a prominent psychiatrist at New Yorks Bellevue Hospital and a professor at New York University School of Medicine, interviewed Kelly at length. She also talked with his mother and examined health and school records from his childhood. Lewis said Kelly was afflicted with "bizarre delusions, hallucinations, incoherence, catatonic behavior and inappropriate affect." She diagnosed Kelly as having paranoid schizophrenia and concluded that he was "unable to assist his attorneys or understand the nature of his legal proceedings." In a brief phone interview last month, Lewis, who in 20 years of experience has examined between 150 and 200 murderers, said Kelly "is one of the most psychotic people I have ever met." The defense relied heavily on her findings, but the state Supreme Court was unimpressed. In 1992 it denied Kellys final state appeal, and his execution date was set for September 29 of that year.
As required by law, about a month before the execution three state-appointed San Quentin alienists (this is what psychiatrists are called in the California penal code) examined Kelly. Based on their reports, then-warden Daniel Vasquez made a highly unusual move, alerting the Marin district attorney, "I have good reason to believe Kelly has become insane." The next step would have been to hold a jury trial on Kellys sanity the first such trial in California since the 1960s. Before that happened, however, a federal defense attorney intervened and asked that Kelly be given a chance to make his case before a federal court.
Federal appeals are the backbone of the capital-appeal process, and if Kelly were competent, he would have had cause to be optimistic. All too often very little effort is put into defending capital criminals until their cases reach the federal level where judges are appointed for life and therefore less likely to be affected by politics. Kellys case fell, by lot, to Judge Terry Hatter,
a jurist in L.A.s Central District, the nations largest federal judicial district. Hatter, an African-American and a Carter appointee, has a reputation for fearlessly challenging governmental dogma. He is an outspoken opponent of mandatory federal sentencing guidelines and once accused prosecutors in the U.S. Attorneys Office of allowing its white prosecutors to make their careers on the backs of black drug defendants. The filing of a federal habeas corpus appeal was, as in most capital cases, expected to be Kellys last, best hope.
That hope was short-lived. Almost from the beginning, things did not go well in Kellys federal proceedings. Hoping to avoid delays in getting an attorney assigned to the case, Hatter decided to conduct a search on his own. Rather than request a referral from the Selection Board for the Central District, which was set up to ensure that federal appeals are handled by qualified attorneys, Hatter gave the case to Al DeBlanc, a criminal attorney and former L.A. police sergeant who had never before (and has never since) prepared a federal habeas writ for a capital case in the Central District.
DeBlanc was certainly qualified as a trial attorney. ä The Los Angeles County Bar Association had placed him in Grade IV its top classification meaning he had been a state-bar member for at least 10 years and had tried at least 50 criminal cases, including 20 felonies. But these qualifications do not mean DeBlanc was equipped to handle a federal capital appeal, which requires such a breadth and depth of specific knowledge that in 1996 the federal Public Defenders Office in L.A. created an entire unit 10 attorneys devoted exclusively to such cases. "This is an arcane, constantly changing area of the law, and even a very accomplished attorney, without this specific knowledge, would have a hard time," says Richard Mazer, a San Franciscobased criminal and appellate attorney. "You cant just go and read a book and say, Okay, I get it."
While DeBlancs reasons for taking the case are unknown, at the time that Hatter appointed the attorney, the financial incentive for a state attorney to attempt a federal case was substantial. The courts were paying defense attorneys on federal habeas cases $150 an hour, twice the rate paid to attorneys for run-of-the-mill federal bank-robbery-type cases and triple the $50 hourly rate paid for state cases. And where a trial case might typically yield an attorney $5,000, a federal habeas case involving not only a review of voluminous records but also a lot of investigative work could easily bring in $50,000 to $80,000 and, in some cases, hundreds of thousands of dollars. In picking DeBlanc on his own, Hatter lost the benefit of the rigorous attorney-screening process. Nine months went by with negligible progress before DeBlanc turned up in Hatters court again, and then it was only to request assisting counsel. Hatter agreed, appointing Eugene Grace, a former L.A. police officer, who had also never before filed a federal habeas petition. DeBlanc assumed the role of lead attorney and strategist, while Grace was to supervise the investigation and preparation of the habeas document.
After a visit to San Quentin, DeBlanc and Grace determined that they would not be getting any help from Horace Kelly in their search for possible constitutional violations on which to base a writ. By now Kellys condition had deteriorated to the point where he was unable to recognize his attorneys or communicate with them at all. He spent whole days speaking to no one, sitting or lying unmoving in his cell. "He was a bit odiferous and kinda shaggy," Grace said in an interview with the Weekly in March. "You could say, Are you an astronaut? And he would say, Oh, yeah. But if you asked him anything where he had to come up with more than a Yes or a No, he couldnt do it. He was, and is, a walking vegetable."
Based on their assessment of Kellys mental state, DeBlanc and Grace concluded that it would be impossible to file a habeas petition on his behalf. In fact, they argued to Hatter, such a petition was unnecessary, because Kelly would be protected from execution by Ford vs. Wainwright, a 1986 Supreme Court decision that stipulated that in order to be executed, a prisoner must comprehend that he has been sentenced to death and understand why. Despite this position, by September of 1994 DeBlanc and Grace had managed to rack up nearly $100,000 in legal bills, about evenly divided between them. In a courtroom colloquy, Judge Hatter chastised the defense, saying, "We have extended a large amount of monies . . . but we dont appear to be anywhere near having petitions filed." He refused to pay any more until the petitions were in and set a filing deadline of March 17, 1995, two and a half years after the Kelly case was assigned to his court.
In January of 1995, Hatter sent David R. Kessler, a San Franciscobased psychiatrist with a reputation for being highly skeptical of prisoner insanity claims, to examine Kelly. After an extensive examination, Kessler reported that Kelly was "only marginally in contact with his surroundings." His "communications are almost entirely irrelevant, incoherent, illogical and tangential." Kessler also said that Kelly was "disoriented for time and for situation." When asked by Kessler to discuss the nature of his original offenses, Kelly gave a disjointed response: "Jail term. Had first offense. Criminal crimes versus homicide versus mystery novel under story under manuscript I. One thousand papers, one thousand numbers. Runs district court Los Angeles and from one inmate to another, from top guard. Some people call it counterfeit versus." When Kessler asked Kelly why he had originally been arrested, Kelly pointed to a piece of paper covered with rows of handwritten numbers and fractions and said, "Ticket number. Attorney numbers." Kessler concluded that Kelly had become severely psychotic and was unable to grasp his legal situation.
After Kesslers exam, work on the case appears to have flagged Hatters deadline passed unmarked, and in the following months Al DeBlanc seemed to be spending most of his time as a KTLA legal analyst for the O.J. Simpson trial. Remarkable among the legion of attorney pundits as the lone pro-prosecution African-American commentator, DeBlanc even filled in as guest host for the vacationing Geraldo Rivera on CNBCs Rivera Live.
As DeBlanc expounded on O.J., Congress, in April of 1996, passed the Antiterrorism and Effective Death Penalty Act. During a Senate debate before the vote, Daniel Moynihan warned of the laws eroding effect. "Here we are trivializing this treasure, putting in jeopardy a tradition of protection of individual rights by federal courts that goes back to our earliest foundation," he said. "And the virus will spread."
For California Attorney General Dan Lungren, one of the laws most ardent backers, its passage was the culmination of a 14-year crusade that began when he was a California congressman and continued after he became attorney general. On the morning the president signed the law, Lungren was his personal guest. Several months later, when the Supreme Court upheld some of the laws main provisions, Lungren issued a triumphant statement. "I have seen death-penalty appeals drag on for a decade or more, making an utter mockery of our criminal-justice system in the process and tormenting victims and their families year after year," he said. "Todays ruling validates our effort to restore finality to the criminal-justice system."
But two years after the laws passage, criminal attorneys and death-penalty experts are still unsure of all of its ramifications. And the laws many critics are especially concerned about the arbitrariness of imposing an across-the-board one-year deadline without regard to the complexity of a case or the quality of previous legal representation. "You can either have a quick system or a fair system, but you cant have both," says Frank Zimring, professor of law and director of the Earl Warren Legal Institute at UC Berkeleys Boalt Hall. "The case of Horace Kelly is rubbing our noses in that fact."
Under the new law, pending cases like Kellys had to file within a year from the date the law was enacted. But Kellys attorneys seemed unconcerned, maintaining that their clients insanity exempted him from the one-year deadline. The district attorney argued that Kellys mental state was irrelevant and warned Kellys attorneys that once the deadline had passed, he would press the court to set an execution date. Still, DeBlanc and Grace did not budge.
By December of 1996, Hatter was frustrated. In response to a request by Grace for additional counsel, Hatter lashed out in court. "Mr. DeBlanc, now having become such a television celebrity, seemingly cannot handle this matter." DeBlanc tried to reassure the judge, saying, "Weve just been unable to do anything because of Mr. Kellys condition."
With that, Hatter, who wanted DeBlanc and Grace to stop racking up bills on the case, declared the proceedings suspended until an official determination of sanity could be made. In the meantime, four and a half years after Horace Kellys case landed in Judge Hatters courtroom, the one-year deadline for filing a writ of habeas corpus had come and gone. As he had threatened, the district attorney filed a request that Judge Hatter vacate the stay of execution he had issued and allow the death sentence to be carried out. Hatter denied the request. But in late September of 1997, he was overruled by the 9th Circuit Court of Appeals. "He did not file his application within one year," wrote Judge Ferdinand Fernandez for the majority. "It is now too late."
Fernandez dismissed Grace and DeBlancs argument that their client could not file because he was insane as an "excuse" and said Kelly "has injected a long, fruitless delay into the state proceedings. The [new federal law] has, however, brought that delay to an end." In a dissenting opinion, Judge A. Wallace Tashima termed the majority opinion "a Draconian result precluding Kelly from ever filing a first federal petition by misreading the record, misapplying the law and defying our own binding precedent."
Attorneys more experienced in preparing federal habeas writs than Grace and DeBlanc found this turn of events appalling. They could not understand why the two lawyers had not tried, in some way, to hedge their bets. Grace and DeBlanc could have, among other things, held a formal competency hearing to declare Kelly officially insane, filed a partial or "skeletal" writ, filling in important details later, or they could have urged the judge to issue an early ruling, giving them time to see how the case would play out before the new laws deadline. "If this guy is really incompetent and really cant cooperate, I would say you better have a judge and some doctors agreeing with you before you put all your eggs in that basket," says Marcia Morrissey, president of California Attorneys for Criminal Justice. "The stakes are just too high." Both Hatter and DeBlanc refused to comment for this story, but Grace said that he left all strategic decisions up to DeBlanc. "Youre really asking the conductor in the caboose what the engineer was doing up in front," Grace said.
Last month, Kellys case was taken over by Richard Mazer, a private criminal and appellate attorney who rallied the forces of friends and staff to work around the clock in his San Francisco office, reviewing thousands of pages of case history and preparing two state habeas petitions one for each of Kellys original trials which were filed on Tuesday, March 31. (State habeas petitions are not subject to the new one-year federal petition deadline.) Among the issues he raises are the unconstitutionality of executing an insane person and professional ineptitude on the part of Kellys original trial attorneys, who preceded DeBlanc and Grace. Specifically, Mazer challenges the admissibility of Horace Kellys confession to the Riverside detectives on the night of his arrest, which Mazer says should not have been allowed into evidence because of the questionable way in which it was extracted. "They played on Horaces religious beliefs," Mazer said. "And no one took into account his mental capacity." Mazer also questions the 40-minute period during the interrogation when the tape recorder was shut off. "It could be very helpful if Horace could tell me what happened during that time," Mazer says. But he cant.
When Mazer went to San Quentin in mid-March to meet Kelly, he found "a very nice, childlike man with a lovely smile which he uses almost entirely inappropriately." Kelly talked in stream of consciousness, told Mazer the year was 1598 and called him "doctor" throughout the meeting. He also referred to the prison as "a technical college" and told Mazer he would be released "as soon as they cleared up a misunderstanding" with the department of unemployment in Sacramento. "Its heartbreaking to sit there and listen to him," Mazer says. "He made very little sense." Mazers hope in filing the appeals and its a long shot is to get a state court to consider reducing Kellys sentence to life without possibility of parole. Since Mazer is filing his writs with the state, he cannot call into question the conduct that may have been the most damaging to his client that of DeBlanc and Grace because their work was conducted at the federal level. Within a week, David Fermino of the Public Defenders office is planning to file a last-ditch pleading that may address that issue. But the clock is running.
Whether or not Kellys mental condition is grounds for sparing his life will be left to a panel of 12 residents of Marin County to decide. Last month, two of three San Quentin psychiatrists asked to determine whether he was sane enough to be executed said he was not, finding him "in a protracted and consistent course of deterioration." The third did not make a finding. Based on their reports, the San Quentin warden informed the Marin County District Attorneys Office that he had reason to question Kellys sanity. Now, the district attorney has convened a juried sanity hearing, slated to begin on Monday, April 6, in Marin. Even if the jury finds Horace Kelly insane, he may receive only a temporary reprieve. He will be sent to a penal institution for the mentally ill "until he becomes sane" a condition determined by an in-house psychiatrist and a judge at which time he would be executed.
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If Kellys fate comes down to a plea for clemency, his chances for escaping lethal injection are slim to none. Last summer, when the 9th Circuit issued an 11th-hour stay for convicted rapist-murderer Thomas M. Thompson on procedural grounds, Wilson and Lungren were furious. The governor accused the court of "flouting" the Antiterrorism and Effective Death Penalty Act, while the attorney general/future gubernatorial candidate called the stay "manipulative proceduralism." UC Berkeleys Zimring says Thompsons reprieve dramatically increases the likelihood that Kelly will be executed. "There are a lot of people in the Attorney Generals Office saying their rosaries that this is going to give them an execution," Zimring says. "Because the scorecard lately is bare."
All four executions that have occurred in California since the death penalty was reinstated in 1978 have taken place during Wilsons watch. Three of the condemned men sought clemency, and all were denied. Kurt Schlichter, one of Kellys former attorneys, observes, "If this were Texas, it might be easier to get him off, because no one has to prove anything. No one is going to say Governor Bush is soft on crime because he let a crazy guy rot in prison for the rest of his life instead of sending him to the chair."
And although a Field Poll conducted last year found that 71 percent of Californians oppose execution of the mentally retarded (let alone someone who is insane), that is not likely to sway the governor. "The reservations Californians have about the particular ethics of executing a crazy person will not stand in the way," Zimring says. "The week after you do it, the only thing that is important is that you executed someone. Its not a political loser for those who are pushing it." In fact, Wilsons office has already contacted the victims families, laying the groundwork for execution number five. "They wanted to know if the governor should intervene," says Diana Pogue, Danny Osentowskis mom. "I said no. Absolutely not. If hes crazy now, thats not our fault. If he did it, he should pay."
Whatever the outcome, it will hinge in large part on the judge and jurys interpretation of the 1986 Ford vs. Wainwright decision. In delivering the opinion of the Supreme Court on that case, Justice Thurgood Marshall made it clear that executing the insane is cruel, unusual and unacceptable "whether the aim is to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance."