Killer Understands He Faces Execution, Prosecutor Says

SAN RAFAEL, Calif. —  Triple murderer Horace Kelly is mentally ill, but he understands that he is about to be executed and that the punishment is connected to the crimes he committed 12 years ago, a prosecutor said Thursday.

In a rare trial to decide if the San Quentin inmate is mentally fit for execution, prosecutor Ed Berberian said psychiatrists will testify that Kelly is aware of his fate and is not insane.

“The evidence is never going to show that someone sat down with Mr. Kelly and said, ‘Mr. Kelly, you are about to be executed’ and that he responded, ‘Yes, I know I am going to be executed for the three murders I committed in San Bernardino and Riverside counties,” Berberian told a Marin County jury.

“But the evidence will show that he does have an awareness that he is going to be put to death,” Berberian said, as he guided jurors through upcoming testimony from two psychiatrists who interviewed the condemned man after his death warrant was issued in March.

According to California law, a condemned inmate must both understand his pending execution and connect it with his crime for an execution to go forward.

The trial to determine whether Kelly is competent for execution was triggered earlier this year when the warden of San Quentin State Prison notified the Marin County district attorney that the condemned man’s sanity was in question.

This is the first time in nearly half a century that a California jury has had to decide whether a condemned man--sane when he committed his crimes, sane when he was convicted and sentenced to death--went mad on death row and should be sent to a mental hospital instead of executed.

In 1986, the U.S. Supreme Court ruled that it is cruel and unusual punishment to execute the insane, and required due process in deciding the mental fitness of the condemned. But the court gave no guidelines for future judges and juries.

The trial began April 6, eight days before Kelly was originally scheduled to be executed. But Marin County Superior Court Judge William McGivern postponed the execution until after the jury can decide on the inmate’s sanity.

Witnesses for the defense have testified repeatedly that Kelly has no understanding of where he is, what he did and what fate awaits him. They have testified that he is psychotic, schizophrenic and can neither understand nor communicate.

According to prison records and declarations from members of Kelly’s family, the man was severely abused as a child, exhibited “trances” and odd behavior since he was a toddler and slipped into severe psychosis in prison.

But Dr. Jeanne Hoff, a San Quentin psychiatrist and one of the state’s first witnesses, contradicted that viewpoint and painted a very different picture. She testified that Kelly recognized her, often gave “logical” responses to questions and at one point was coherent enough to query her.

Hoff was one of three psychiatrists who interviewed Kelly after the warden of San Quentin questioned the 38-year-old’s sanity. During the required evaluation 20 days before the execution, Hoff said she asked Kelly if he was OK, or if he was sad or frightened.

“He said to me in little bits of sentences, sad, fearful, he reported crying . . . at times when mental health staff was not available,” Hoff said. “I had the feeling that he had some emotional connection to the phrase ‘put to death.’

“At odd hours he was worried about it,” she said. “It’s far from a clear statement, but that was my opinion.”

Hoff said there is no reason for Kelly to be unaware of his pending execution and of its connection to his convictions for the murder and attempted rape of two women and the murder of an 11-year-old boy in 1984.

“That is not a complicated, abstract concept,” she said. “It is very simple and very terrifying and he seems to understand a lot of things that are in that category.”

But Hoff stopped short of saying Kelly fully meets the California standard for execution. One reason is that, while he can communicate on a very simple level, he immediately digresses into unintelligible monologues if he is not guided carefully in conversation.

“There’s just too much at stake for me to verify that he knows what’s going on without some more help from him,” she said Thursday.

In his opening statements, which he chose to delay until the defense finished calling witnesses, prosecutor Berberian said another psychiatrist will take Hoff’s statements one step further.

Dr. Diane McEwan, Berberian said, “believes [Kelly] does know the pending nature of the execution, and he knows the reason he is being executed and even names of some of his victims.”