Mercy Me?

[dales]

COLUMBUS, Ohio (AP) — Condemned killer Steven Smith's argument for mercy isn't an easy one. Smith acknowledges he intended to rape his girlfriend's 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith's attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

"The evidence suggests that Autumn's death was a horrible accident," Smith's attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: "Despite the shocking nature of this crime, Steve's death sentence should be commuted because genuine doubts exist whether he even committed a capital offense."

Smith, 46, was never charged with rape, meaning the jury's only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith's actions "the purposeful murder of a helpless baby girl."

Prosecutor James Mayer told the board in his written statement that the girl's injuries were consistent with a homicide that contradicts Smith's claim he didn't intend to kill her.

"The horrific attack upon Autumn Carter showed much more than Smith's stated purpose," Mayer said.

Mayer said Monday he didn't know why Smith wasn't charged with rape, but he said it wasn't part of a trial strategy.

The attack happened early in the morning of Sept. 29, 1998, in the Mansfield apartment of the girl's mother, Kaysha Frye, whom Smith had been dating about six months.

Frye was awakened after 3 a.m. by a naked Smith, who placed Autumn beside her in bed, according to records prepared for the parole board hearing. Frye realized the girl wasn't breathing, told Smith he'd killed her and then ran to a neighbor's house for help.

Smith, known to consume as many as 12 beers a day, had had several beers the previous evening and had a blood-alcohol content of 0.123, well above the legal limit for drivers, when he was tested almost eight hours later, at 11 a.m., records show.

Smith had unsuccessfully tried to have sex with his girlfriend the evening before the attack, according to records. The prosecutor argued that Smith's assault of the girl was revenge for Smith's failure to perform with Frye.

Smith's attorneys dispute this, saying the girlfriend was not upset with Smith.

Prosecutors presented evidence at trial that Smith's attack lasted as long as 30 minutes, during which time Smith beat the girl to death.

Expert witnesses for Smith conclude he may have accidentally suffocated the girl within three to five minutes while he lay on top of her, according to Smith's clemency petition.

Smith's attorneys have an uphill battle in their argument because of the "moral repugnancy" surrounding the claim of partial innocence, said Doug Berman, an Ohio State University law professor and death penalty expert.

"But if the lawyers for this defendant can legitimately assert that the evidence doesn't show or support that this was an intentional killing, not only is it appropriate to bring this up at clemency, I think they're obliged, representing their client appropriately, to stress this point," Berman said.

If executed, Smith would become the 51st inmate put to death in Ohio since the state resumed executions in 1999. The state has enough of its lethal injection drug, pentobarbital, to execute Smith and two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.



Read more: http://www.sfgate.com/news/us/article/O ... z2PN0CRsEc

[Gob]

Off him.

[oldr_n_wsr]

Smith, known to consume as many as 12 beers a day, had had several beers the previous evening and had a blood-alcohol content of 0.123,

A serious lightweight in the circles of AA. Most alcoholics I know blow over a 0.2 and twleve beers is just getting started. Hiding behind 12 beers....not much of defense.
Fry 'im

[Lord Jim]

A .12 is over the legal limit for driving a car, but it certainly isn't going to make an experienced drinker, (as this scumbag apparently is) as out of his mind blotto as is being claimed...

Bring on the gurney...next case....

(I do however give the defense lawyers marks for having the balls to try to make this argument...this obviously isn't going to win them any popularity contests...Clearly they take the "defend your client zealously" part of their commitment as attorneys very seriously....)

[oldr_n_wsr]

I have blown a 0.24 and most people would not know I was drunk. Only my wife saw it in my eyes. As I said, 12 beers is just a warm up, a quart of vodka would follow. Then we can talk about using alcohol as a defense. And even then, it should be dismissed out of hand because 12 beers (even without anything else) render the "hard on" potential to a limp noodle. trust me, I know

[dgs49]

Just a quick legal point. In common law there existed a "felony murder" doctrine. When someone dies as a result of an otherwise criminal act, they are guilty of murder. This is why Bruno Hauptmann was charged with stealing the Lindbergh baby's pajamas - to raise it to capital murder.

This guy killed the baby while committing another felony.

[Big RR]

I think the sticking point there is that he was not charged with the other felony---rape; in such a case it may be inappropriate to charge capital murder, except in cases where he intended to kill the victim. I don't know what the Ohio murder statutes recite, but it could be that felony murder would require the felony charge, and that otherwise there would have to be evidence of an intent to kill (some states have the depravity of the act as a significant factor making it a capital offense, but perhaps Ohio does not). This may have been a screw up by the DA, or perhaps an intentional strategy to avoid giving the jury the fallback position of finding him guilty of rape, but not murder. I'm also not certain what effect his high blood alcohol level may have had.

Jim--

(I do however give the defense lawyers marks for having the balls to try to make this argument...this obviously isn't going to win them any popularity contests...Clearly they take the "defend your client zealously" part of their commitment as attorneys very seriously....)

Indeed, as well as an opposition to the death penalty under all circumstances, I'd wager. But compliance with the law, even for offenders as odious as this one, underlies our entire legal system. I am glad there are people who will make these arguments, whatever their motivation.

[Lord Jim]

Dave, I don't think they're disputing his murder conviction; it looks like they're trying to have his death sentence commuted, not get his conviction overturned.

Apparently his lawyers are claiming that under Ohio law, as regards the imposition of the death penalty (as opposed to any other sentence) there is an additional requirement of "intent" to commit the murder.

I don't know if that interpretation is correct, but that's what they seem to be claiming....

[Sue U]

Dave, I don't think they're disputing his murder conviction; it looks like they're trying to have his death sentence commuted, not get his conviction overturned.

Apparently his lawyers are claiming that under Ohio law, as regards the imposition of the death penalty (as opposed to any other sentence) there is an additional requirement of "intent" to commit the murder.

I don't know if that interpretation is correct, but that's what they seem to be claiming....

That's what the article says, Jim, but the Ohio aggravated murder statute (ORC 2903.01) prohibits "purposely caus[ing] the death of another." From what I remember of criminal law in law school, "purposely" by definition means "with intent to do so," and is the highest order of mens rea (culpable mental state), surpassing "knowingly," "recklessly," and "negligently." It's hard to see how he could have been convicted of the aggravated murder charge without the finding of intent required by the statute -- in which case the conviction itself should be overturned -- unless there is case law interpreting the statute to mean some other sense of "purposely." Or the argument may have to do with only the sentencing statute and the application of aggravating and mitigating circumstances in that context alone. But even so, it seems the requisite "intent" has already been found in the guilty verdict, and no challenge to that finding should be allowed in the sentencing phase.

In any event, the facts of this case, a least as they are reported here, sorely test my opposition to the death penalty. But really, I think a sentence of life imprisonment with a 30-year minimum for parole eligibility would work out just fine.

[dales]

Throw him on the main line.

[Gob]

Too quick.

Have him raped with a baseball bat until he bleeds to death.

[rubato]

He's playing his best card, and that's it.


yrs,
rubato

[Lord Jim]

Sue, in looking again at the article:

Smith's attorneys argued in court filings with the Ohio Parole Board,

It appears that his attorneys are making this argument, not to an Appellate Court; given the fact that he was convicted 15 years ago, in 1998, presumably all his appeal arguments are exhausted...(afterall, this isn't California...)

The parole board doesn't have the authority to overturn a conviction; the best it can do is recommend a commutation of the sentence....This "intent" issue was either hashed out in the original series of appeals and found to be without merit, or not brought up as an appellate issue originally, and can't be brought up now for a new round of court appeals...

as well as an opposition to the death penalty under all circumstances, I'd wager.

I suspect that theory of Big RR's is correct...

I haven't Googled their history, but I suspect that the lawyers involved in this appeal to the parole board are folks who look for any case where they can argue against the Death Penalty...

Regardless of the legal merits...(whether or not they were involved in the original case, or the appeals; trying to establish some sort of "precedent" for future cases...)

They're throwing a complete legal "Hail Mary"....

And hoping they'll get somewhere with it...

As a practical matter, I can't imagine any member of a parole board, in a death penalty state, recommending a commutation of a sentence in a case as horrific as this, where none of the basic facts are in dispute, (killing a six month old child while trying to rape them..."beyond the pale" doesn't do it...whatever is" beyond the pale", and beyond what is beyond that, and beyond that...might start to come close...)

Nor can I imagine any Governor of any state where someone who had committed a crime like this and had been sentenced by a jury to Death (In this case John Kasich, who the public sector unions like to demonize, but who is actually a very bright and reasonable sort) granting a commutation...

Even if the Governor of Ohio's name was Dennis Kucinich, I can't imagine a commutation being granted in this case...

No, this piece of sub-human filth is getting the needle...

It's far too humane for him, (personally I would prefer something more along the lines Strop suggested) but it's the best our legal system provides...