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Executing the Mentally Ill: Who is Really Insane?

Executing the Mentally Ill: Who is Really Insane?

As California Moves to Execute Horace Kelly, Questions Linger

"Facinorous" is the word a federal appeals court used to describe what Horace Kelly did in November 1984. It means "atrociously wicked" and is a term so obsolete it isn't listed in some dictionaries. As Kelly faces execution in California's San Quentin prison, however, this arcane term will be the focus of the often tempestuous interplay between psychiatry and the legal system as they clash once again.

At stake is whether the laws defining sanity can actually distinguish between those individuals who are evil and those who are mentally ill, and what role psychiatrists should play when the legal definitions make the difference between life and death. Also under the microscope is the value of forensic psychiatric testimony itself, and whether the message about mental illness is getting through to juries, judges and appellate justices.

"In general, the experience is that the more heinous the crime the less likely an insanity defense, or in this instance, a ruling that might result in a deferral of an execution, will prevail," says Arthur Zitrin, M.D., professor emeritus of psychiatry at the New York University School of Medicine, and the former director of psychiatry at Bellevue Hospital of New York.

"It's a very difficult task to make juries understand complex ideas without the kind of psychiatric jargon that makes people's eyes glaze over. I must say that psychiatric testimony often has little effect on the outcome of trials where mental illness is an issue," he added.

Due Process Observed

For nearly 14 years, Kelly received the full array of due process protections guaranteed by state and federal laws. The subject of multiple competency evaluations, two separate criminal trials, two California Supreme Court appellate opinions and one apellate opinion from the 9th U.S. Circuit Court of Appeals, it is hard to believe that Kelly's mental state still remains an issue.

On April 6, the U.S. Supreme Court refused to review a decision by the U.S. Court of Appeals saying Kelly had forfeited his right to appeal because he missed the one-year statute of limitations under a new federal law, according to a recent San Francisco Chronicle article. Kelly's attorneys claim that the condemned inmate missed the deadline because of his deteriorating mental state.

The legal battles did not end there. Kelly, who was scheduled to die by lethal injection on April 14, won a delay while a Marin County jury decides his fate. Marin County Judge William McGivern issued a court order on April 9 barring Kelly's execution until a determination can be reached regarding his sanity.

As Psychiatric Times was going to press, a statutory process was underway that has not been invoked in California for over four decades but that will ultimately provide the ground rules for determining whether Kelly is sane enough to be executed. Descriptions of the crimes for which Kelly has been convicted-multiple murder and attempted rape-detail a litany of depravities. In the minds of those who support the death penalty these are ample reasons for Kelly to receive the ultimate punishment.

In the early morning of Nov. 16, 1984, in San Bernardino, Calif., which lies about 50 miles east of Los Angeles, Sonia Reed's partially nude body was found behind a headstone at a local memorial business. She had been shot twice at close range, the first shot severing her spinal cord and penetrating her heart. The second shot went into the back of her head and exited her right lower eyelid. According to forensic evidence, both shots inflicted "contact wounds," meaning the gun was held tightly against the body.

The next morning, the partially nude body of Ursula Houser was found in an alley behind a bowling alley. She had died of a single gunshot wound to the back of the head that penetrated the brain. Again, the muzzle of the gun had been pressed against the head before it was fired.

In each of these murders, evidence existed that a sexual assault had occurred.

On Nov. 22, 1984, the day before Thanksgiving, 11-year-old Danny Osentowski and his 13-year-old cousin Shannon Prock were on their way to a local convenience store to buy candy in Riverside County, a short distance from San Bernardino. On a dirt path adjacent to the convenience store, a man later identified as Kelly chased the children, grabbing Shannon from behind. As Kelly dragged Shannon toward his van, Danny kicked him, enabling her to escape. Shannon had run about 40 feet when she heard two gunshots. After hearing Danny say, "Don't shoot me again. I'll die this way," a third shot rang out.

The .357 magnum found in Kelly's van upon his capture was determined to be the gun used in all three murders.

Kelly was convicted of murdering Ostentowski in April 1986. During the penalty phase of the trial, the defense presented the testimony of two school psychologists, a learning disability specialist, a social worker, a neurologist, a clinical neuropsychologist and a clinical psychologist. Their combined testimony concluded that Kelly had an IQ in the low 80s, a "schizotypal personality" that included occasional bizarre or strange thoughts but not psychosis, several learning disabilities and perceptual impairment, brain damage linked to various cognitive symptoms, and attention-deficit disorder.

Nevertheless, the jury refused to conclude that the offense was mitigated because it occurred "while the defendant was under the influence of extreme mental or emotional disturbance." They returned a death sentence verdict on May 21, 1986.

By the time Kelly was tried for the murders and attempted rapes of Reed and Houser in January 1988, his defense strategy had changed. This time he pled not guilty by reason of insanity. The move invoked California's version of the M'Naghten test, requiring the defense to prove by a preponderance of the evidence that Kelly was incapable of knowing or understanding the nature and quality of his acts or of distinguishing right from wrong at the time of their commission.

The testimony of psychiatrists and a clinical psychologist revealed that Kelly suffered from "a psychotic-like disturbance," "impaired intellectual ability of some kind," "attention-deficit disorder" and "a schizotypal personality disorder in conjunction with a moderate degree of brain damage." They also confirmed his borderline intelligence and learning disabilities. None of the testimony persuaded jurors.

The instructions given to the jury underlie the schism that separates medical and legal definitions. "Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity," the court explained. "A person may be mentally ill or mentally abnormal and yet not be legally insane."

By the end of February 1988, Kelly was again convicted, this time for two counts of murder and attempted rape. He was found legally sane, and was sentenced to death. In 1990 and 1992, the California Supreme Court affirmed both convictions and death sentences. (People v. Kelly, 51 Cal.3d, 931; 275 Cal. Rptr. 160; 800 P.2d 516 [1990]; People v. Kelly, 1 Cal. 4th 495; 3 Cal. Rptr.2d 677; 822 P.2d 385 [1992]).

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