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]).

Deteriorating Mental Health

In the intervening years, according to Kelly's lawyers and medical records and reports obtained by Psychiatric Times, his mental health has deteriorated. Nevertheless, in a landmark federal ruling that was among the first to uphold important time limitations in the 1996 Antiterrorism and Effective Death Penalty Act, the 9th U.S. Circuit Court of Appeals refused to extend the one-year statute of limitations for filing a federal habeas corpus petition based on Kelly's alleged mental incompetence (Calderon v. United States District Court, etc., Horace Edwards Kelly, Real Party in Interest, 127 Fed. Rptr.3d 782 [9th Cir. 1997]).

What is now left for Kelly hinges on the outcome of the last-minute competency hearing before a jury. What happens there will depend in large part on the examination and cross-examination of the prison psychiatrists who examined Kelly and found him insane, along with the testimony of one defense psychiatrist of Kelly's choosing.

According to a 20-day pre-execution report obtained by Psychiatric Times and drafted by Ronald Ponath, M.D., the chief psychiatrist at San Quentin State Prison, Kelly failed to understand that he was about to be executed or why. "[I]nmate Horace Kelly does not satisfy the competency to be executed standard currently utilized by the State of California." The report continues, "That is, it appears that a mental illness of deficit currently prevents inmate Kelly from being aware of his impending execution and the reason for it." Ponath has yet to respond to an interview request.

Violence Research...

Dorothy Otnow Lewis, M.D., professor of psychiatry at New York University School of Medicine and clinical professor of psychiatry at Yale University's Child Study Center, has conducted research into violence and consulted extensively in cases involving deathrow inmates (PT August 1997). Her new book Guilty by Reason of Insanity (Fawcett Columbine, 1998), chronicles a quarter century of work studying the differences between those who murder and those who don't.

Lewis also knows Kelly because she conducted an evaluation of him in 1991 in conjunction with one of his appeals. Although she declined to disclose what could be confidential information concerning his condition, the comment she was willing to make was that when she evaluated Kelly years ago, "He was among the most psychotic death row inmates that [my team and I] ever evaluated." Not even aware until recently that Kelly's execution date was scheduled, she was at loss to explain how his case could have proceeded this far.

...And Violent Crimes

Lewis is concerned that legislators act impulsively when faced with violent crimes, passing laws that "fly in the face of common sense." By creating tests and standards that are totally cognitive, they exclude a range of other factors that could affect behavior. "But sometimes, adopting purely moralistic and unmeasurable definitions of insanity and forcing psychiatrists to make use of them, the legal profession forces us to reach some pretty peculiar conclusions," Lewis wrote in her book.

"What our work has shown is that there are constellations of three factors that come together and seem to be associated with extraordinary violence," Lewis said. "They are the combination of a history of extraordinary, early ongoing abuse, some kind of brain dysfunction and psychotic symptoms, particularly paranoia. The more serious the neurologic and psychotic symptomotalogy, if the individual has been abused, the more violent the individual seems to be."

Conceding that "forensic psychiatrists have bought into these purely cognitive and legalistic definitions of insanity," Lewis added that "they probably shouldn't be used by psychiatry." Rather, she said that psychiatry should instead teach "lawyers and the judicial system about the effects of psychiatric, neurologic and experiential factors" and convey the message that both "individual choice and control are on a continuum defined by those factors."

(In Part II, set for publication in the June issue of Psychiatric Times, we'll report on Horace Kelly's fate. In the aftermath of his years-long entanglement in the legal system, we'll examine whether either justice or psychiatry is being served in the struggle to protect and vindicate society while defending individual rights-Ed.)