SAN RAFAEL, Calif. — This was what was supposed to happen: At a minute after 12 a.m. Tuesday, San Quentin inmate Horace Edward Kelly Jr. was to die by lethal injection for the murders of two women and a child.
So far, though, nothing is going as planned. In fact, there really is no plan.
For the first time in nearly half a century, a condemned man in California faces a jury trial at the 11th hour to decide if he is sane enough to be executed after what his lawyers say was a 12-year descent into madness on death row.
Kelly was ruled sane when he committed his crimes in 1984, and sane when he was sentenced to death.
This week, jury selection began in the unprecedented trial to decide if Kelly is still sane enough to die. As the clock ticked toward the scheduled lethal injection, the trial judge Thursday granted Kelly a brief postponement of execution, ruling that the state may not kill the killer without a decision on his sanity.
"There are no rules. The rules are being written as we go along. The judge could be deciding the rules and the future" of death penalty law in California, said Richard Mazer, Kelly's defense attorney. "This will be a precedent."
Sanity is a moving target. So is the law. And only one thing is clear when the two intersect: It is illegal--unconstitutional, in fact, a violation of the 8th Amendment--for an insane person to be executed. The U.S. Supreme Court said so in 1986.
What the high court didn't spell out, however, was how the mental state of a condemned criminal should be judged on the eve of death, leaving legal minds across the country struggling to find 50 separate sets of guidelines to define that ephemeral thing we call sanity.
The only law in California that addresses this question is very nearly a century old and has not been used since 1951--a legal lifetime away in the fast-changing arena of death penalty policy.
The statute gives precious little guidance to Marin County Superior Court Judge William McGivern, as he struggles to figure out how to figure out if Kelly--described by one defense attorney as a "walking vegetable"--should die for his crimes.
If the jury decides that Kelly is not competent to be executed, a legal controversy will be laid to rest but an equally thorny medical issue will arise. For Kelly, 38, will be sent to a mental institution until he is cured. If cured, he will then be sent to die. And what doctor would save a patient only to see him killed by the state?
"It gets into the bizarrest area of the law," said Victor Streib, dean of the law college at Ohio Northern University and a death penalty expert. "If someone is found to be insane, then they're sent into treatment. If the goal of treatment is to get them well, they're executed. If they stay crazy, their life is saved."
Two Women, Boy Are Slain
Kelly began his march toward death row 14 years ago, on a Friday morning in late November when he picked up a hitchhiker named Sonia Reed. Her body, nude from the waist down, was later found behind a headstone at a San Bernardino memorial business. She had been shot twice and left for dead.
The next morning, Kelly picked up Ursula Houser, tried to rape her and shot her to death. Her body, also nude from the waist down, was found in a San Bernardino alley with a bullet in the head.
The final victim was 11-year-old Danny Osentowski, shot three times in the face on Thanksgiving Day as he fought to prevent Kelly from kidnapping his 13-year-old cousin, Shannon Prock.
The two children were on their way to the store for candy after a holiday meal in a Riverside County town called Pedley. Kelly, then 24, accosted the pair as they walked home along a darkened dirt path.
He grabbed Shannon and put a pistol to her neck. Panicked, Danny tried to flag down passing motorists, but no one would stop. So he returned to help Shannon, as Kelly dragged her off to a van. Danny kicked Kelly in the shins, and his cousin escaped.
Shannon heard two shots ring out, she testified later. Then Danny pleading: "Don't shoot me again. I'll die this way." Then a third shot. The last one struck the 11-year-old between the eyes, killing him.
Kelly was convicted of murder and attempted rape in 1986 for the deaths of Houser and Reed. Two years later, he was convicted of Danny's murder and sent to San Quentin State Prison to await execution.
But a lot can happen in 12 years on death row.
"It's the most stressful confinement of anywhere," said Michael Radelet, chairman of the sociology department at the University of Florida and author of a book called "Executing the Mentally Ill." "By definition, a certain proportion of people will go nuts living under those conditions for a number of years. And this guy didn't start with a full deck of cards."
A Childhood of Beatings, Sex Abuse
Horace Kelly's youth was a never-ending stream of abuse--sexual assault and physical attack that spanned the decades and bridged the generations of his troubled and violent family.