Even proponents of the death penalty have usually been willing to make an exception of those who were "insane" at the time they committed the crime. But what of those who become insane after they are convicted and sentenced? This, writes PNS commentator Michael Kroll, is the issue before a California jury which must act within a few days. Kroll, an associate editor of Pacific News Service, specializes in criminal justice and death penalty issues.

Twelve jurors in a California courtroom must decide this week whether Horace Kelly is sane enough to die.

The law in this case suspends the death sentence for a prisoner who has become insane -- but provides no guidelines for making that decision. This is considered a civil trial, so only nine votes are necessary either way.

The law was last applied in California in 1951, in the case of Leanderess Riley. Riley was the only prisoner in California history to break free of the restraints in the gas chamber. He jumped up in terror and raced around the chamber screaming and beating frantically on the thick glass walls. "He kept right on screaming," according to the officer assigned to watch the execution, until the cyanide gas hit him.

All sides in the current case have agreed that the interpretation of the law in the Riley case was unconstitutional.

California Penal Code section 3701 calls for a trial if "There is good reason to believe that a defendant, under judgment of death, has become insane." As no one can be sentenced to death unless they are judged sane, the law clearly refers to condemned prisoners who have suffered severe mental deterioration after sentencing.

The law, passed in 1905, goes into effect only after an execution date is set. At that point, the state's Director of Corrections must "select and appoint three alienists" from that department "to examine the defendant ... and investigate his or her sanity."

If there is reason to think the defendant is insane, the warden of the prison where the execution will take place must notify the county District Attorney. The DA, in turn, must then go to the court and ask for a hearing on the question of sanity. Finally, the court must empanel a 12-person jury to find whether or not the defendant knows what an execution is and why he is to be executed.

The language and understandings of the 1905 statute may sound archaic, but the substance of the law was upheld in 1986, when the US Supreme Court ruled that it was unconstitutional to execute an insane person.

Judge William McGivern, who is hearing the Kelly case, refused defense requests to delay the execution so they can prepare their arguments, saying it is not within his powers, and is proceeding with the trial.

San Quentin medical records state clearly that Kelly suffers from disabling chronic schizophrenia.

Schizophrenia can induce hallucinations and delusions so strong that those who suffer from the disease confuse real events perceived through the senses with events that originate with their own brains. Kelly barely speaks. He does not know his age, the day of the week, his mother 's name.

His illness was clear long before his incarceration. There is evidence his brain was damaged at birth -- he was born more than two months premature and weighed less than two pounds. His father began abusing him physically and sexually before he was 18 months old. At age four, his mother noted he frequently went into a kind of trance, staring blankly into space, shivering.

At age 14, Kelly began to suffer blinding headaches accompanied by frightening nightmares involving demons which he drew constantly.

In 1984, at the age of 24, Kelly murdered three people over six days. "This wouldn't have happened, I know it wouldn't have happened, if I'd have been myself," he said to homicide investigators. "I wasn't in my right state of mind when I did these things. My body was there but my mind wasn't there."

This was one of the last times Kelly showed any insight into his troubled mind or communicated a complete thought. During his murder trial, Kelly spent weeks curled in the corner of his cell, sleeping under the sink and crying. In court, "he had an odor of urine about him and lice visible in his hair," his defense investigator remembers. "Throughout the trial, Mr. Kelly did not shower, shave, or cut his hair despite repeated requests to do so."

By the time Kelly arrived on death row, he had virtually ceased to communicate. He wrote his last letter 10 years ago. Scores of entries in prison staff reports show his condition. Here are some typical examples:

1/16/90 -- "preoccupied confused and delusional ... fragmented bizarre, and illogical;"

2/17/90 -- Kelly disciplined for refusing to shower, but "no penalty assessed due to psychiatric condition."

Other entries refer to Kelly as "withdrawn," "confused and disoriented," "refusing to flush toilet," and "never verbalizing more than one or two words."

In 1992, Kelly was admitted to California medical prison facility at Vacaville, diagnosed with chronic schizophrenia. A court-appointed psychiatrist reported that his mental disorder was so severe he was unable to understand his legal position.

In the six years since that was written, Kelly's mental state has declined even further. At present, he believes he is a security guard residing in San Quentin on an extended vacation.