Court Upholds Execution for Triple Killer

A federal appeals court approved the execution of a convicted triple murderer from Southern California who has failed to file a federal appeal because, a defense lawyer said, the man is a “walking vegetable.”

In a 2-1 ruling Thursday, the 9th U.S. Circuit Court of Appeals said Horace E. Kelly’s case must be dismissed and his stay of execution lifted because he did not appeal within the one-year deadline set by a relatively new federal law.

The court said Kelly’s mental state was irrelevant because his lawyers could have challenged his conviction and sentence without his assistance. It will be relevant only if a judge or jury finds that he is too insane to be executed, the court said.

Kelly, 37, is the first California death row inmate caught by the deadline in the April 1996 federal law, which requires federal appeals--technically, petitions for habeas corpus--to be filed within a year.

He is under two death sentences, in San Bernardino and Riverside counties, for murders within a six-day period in 1984.

He was convicted of fatally shooting Sonia Reed after an attempted rape on a San Bernardino street in November 1984, of fatally shooting Ursula Houser after a robbery and attempted rape in a San Bernardino alley a day later, and of killing 11-year-old Danny Osentowski in Riverside five days after that. According to court records, Kelly was holding a gun to a 13-year-old girl’s head when the boy, her cousin, kicked him, enabling her to run away.

The state Supreme Court upheld the death sentences in unanimous rulings in 1990 and 1992. Defense lawyer Eugene R. Grace said the reason no new appeal has been filed is that Kelly is mentally incompetent to assist his lawyers.

Without Kelly’s help, lawyers cannot determine what he told his trial lawyer about his childhood and mental health and if the lawyer acted competently, Grace said.

He said U.S. District Judge Terry Hatter of Los Angeles had put all proceedings on hold--including the filing of an appeal--until after a hearing, scheduled next month, on Kelly’s competence. The appeals court majority disagreed, saying that an appeal could have been filed.

“All of the doctors who have examined him say he doesn’t know where he is,” Grace said. “His brain is atrophying within his head. He’s a walking vegetable. After all this exercise, he’s probably not going to be executed anyway” because of the legal ban on executing the insane.

He said a further appeal is likely. Kelly’s execution would remain on hold during the appeal.

Deputy Atty. Gen. Dane Gillette said a defendant’s mental competence, essential for a trial, is beside the point in a voluntary proceeding such as habeas corpus, a post-conviction legal challenge. The Constitution does not even entitle the prisoner to a lawyer during those proceedings, he said.

The appeals court said Kelly had no legal excuse for failing to seek habeas corpus within a year after the new federal law took effect.

“He has injected a long, fruitless delay into the proceedings,” said the opinion by Judge Ferdinand Fernandez, referring to the period of more than four years since Kelly’s lawyers were appointed for his federal court case. He said the defense was seeking to turn the habeas corpus process into a source of perpetual delay, a goal thwarted by the new law.

In dissent, Judge A. Wallace Tashima said Kelly’s long-standing “serious mental problems” had been recognized even by prison psychiatrists and were a legitimate reason to extend the one-year deadline.