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Judge Allows Triple Murderer's Sanity Trial to Continue

Courts: Jury could decide if defendant is sane enough to be put to death even though he now has no execution date.

April 28, 1998|From Associated Press

SAN RAFAEL, Calif. — A hearing to determine whether triple murderer Horace Kelly is sane enough to be executed can continue, even though Kelly does not currently have a date in the death chamber, a judge ruled Monday.

The decision by Marin County Superior Court Judge William McGivern came after lawyers renewed arguments over an issue that has dogged the hearing from its inception: Can a 1905 law work on the eve of the millennium?

The problem is that the law requires a jury trial if there's a question about an inmate's sanity in the days immediately preceding the execution. Back in the first half of the century, that apparently wasn't a problem. The last such case, in 1950, took only a day.

But legal times have changed, and federal and state court rulings now give inmates the right to attend hearings and bring a lawyer.

Kelly, 38, was sentenced to die for killing two women and a boy in Riverside and San Bernardino counties in 1984. His sanity was called into question by a prison psychiatrist's pre-execution report.

The Kelly hearing began April 6, shot past his original April 14 execution date and appears likely to extend at least into next week.

State prosecutors are seeking a new execution date in June.

Monday, Kelly's attorney, Richard B. Mazer, asked the judge to call off the hearing. "These proceedings are moot," he said.

Mazer said the state's decision to seek new dates concedes that there is no execution date currently in place. No pending execution means no hearing to determine whether Kelly is mentally fit for the punishment, he maintained.

Senior Assistant Atty. Gen. Dane Gillette disagreed. "If this argument would be correct, then there would be a Catch-22 that would ultimately be insurmountable," he said.

Gillette argued that the proceedings are valid because they began before the scheduled execution date.

In denying Mazer's motion, the judge made only a brief comment that the proceedings are valid because they began before April 14.

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