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?
