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April 2, 2013

A challenging clemency claim of capital "innocence" for Ohio death row defendant

This new AP story, headlined "Ohio Man Who Killed 6-Month-Old Girl Seeks Mercy," highlights the perhaps unique and uniquely difficult clemency contentions being made by a condemned killer in Ohio.  Here are the details from the start of the press story:

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.

April 2, 2013 at 10:27 PM | Permalink


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Hello , I am just another guy (JAG) in Ohio .

Most do not understand that the Federal and Ohio Public Defender attorneys are representing the defendant to ensure that justice is accomplished in Ohio according to the Rule of Law .

The prosecutor is representing the people of Ohio to ensure that justice is accomplished in Ohio according to the Rule of Law .

All three share these duties in an adversarial system .

Admittedly , for some , including some attorneys who have never tried a case , let alone any degree of homicide ; it is difficult to understand why a criminal defense attorney would defend the right to live of such a client .

Neither defense counsel , Professor Berman , authored the statute at issue ; and it is doubtful the General Assembly or Governor at the time requested out input , at least no one asked me .

Posted by: Anon. #2.71828³ | Apr 2, 2013 10:47:54 PM

No one says that this guy isn;t entitled to make his arguments. And we're entitled to note how unlikely they are to succeed and that this guy probably would be better served simply accepting his fate with some degree of reflection.

Posted by: federalist | Apr 3, 2013 12:24:34 AM

worst . . . defense . . . ever.

Posted by: hgd | Apr 3, 2013 12:29:01 AM

No, the guy will next turn around and claim ineffective assistance based on the fact that this argument, far from being any sort of actual mitigation, is in fact its own aggrevator.

And even though he is not entitled to effective assistance of counsel at this point the federal courts will still use it as an excuse to waste another three to five years. And in the meantime there will be other trips to court over things like method of execution and anything else that can be dreamed up.

Posted by: Soronel Haetir | Apr 3, 2013 2:42:13 AM

Soronel --

Your heart and your suspicions are in the right place, but I think you can rest easy here. There is no "right" to effective assistance in seeking executive clemency since there is no right to such clemency at all. The executive has plenary power, meaning that he doesn't need any "process" at all. (That might be different in Ohio, but mostly a Governor can disregard the Parole Board's recommendation).

And I think the method of execution challenges are mostly over with in Ohio, although capital defense lawyers have been known to pull any stunt.

Come to think of it, it doesn't make any difference at this stage what his exact intend was when he suffocated this baby. Clemency is strictly an act of grace, not an adjudication, much less a re-adjudication, of issues resolved by the judicial branch. The world of legal/process entitlement is over with, and in the world of grace-seekers from the executive, this guy has to be last in line.

Posted by: Bill Otis | Apr 3, 2013 8:44:43 AM

so this guy's defense is that he is only a baby rapist and not a baby murderer?

*eyes roll* that argument is sure to get the Parole Board on his side.

Seriously, the only way that this argument will work if the parole board decides that him spending the rest of his life in prison in general population as a baby rapist is worse than death.

Posted by: Erika | Apr 3, 2013 9:34:05 AM

Yo, Ohio. Get him drunk and then kill him. But do not kill him in the name of The People of The State of Ohio, because then Y'all are going to have a Sixth Commandment problem down the road when your time comes and you go to meet your maker at the Pearly Gates and he asks what state did you hail from.
Dont forget the Sixth Commandment: Thou Shalt Not Kill.

Posted by: Liberty1st | Apr 3, 2013 9:51:38 AM

Liberty1st --

"Yo, Ohio. Get him drunk and then kill him. But do not kill him in the name of The People of The State of Ohio, because then Y'all are going to have a Sixth Commandment problem..."

In whose name would you suggest that he be killed?

Posted by: Bill Otis | Apr 3, 2013 10:13:47 AM

Erika --

It ceaselessly amazes me what some defense lawyers claim to be able to do with a straight face.

Posted by: Bill Otis | Apr 3, 2013 10:16:21 AM

"rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty"

Just to be clear here, the idea is that he wasn't charged with rape, but aggravated murder, which here entails rape as part of the aggravation and the jury found that it occurred since it is required for a jury to determine the facts required in such cases under Ring v. Arizona? Do I have that right?

If so, he basically wants to override the judgment of the jury, here saying he was too drunk to have the "intent" to do the crime. This doesn't sound novel -- surely alcohol or drugs have been used as an alleged mitigation. It doesn't tend to work, I assume, but it is not a novel stance to take & if the crime wasn't so horrible and the harm so obvious (this isn't about driving a car or some bar fight), it might be a tad more likely to be taken seriously.

BTW, federalist makes a good comment.

Posted by: Joe | Apr 3, 2013 11:27:46 AM

Liberty1st: "Dont forget the Sixth Commandment: Thou Shalt Not Kill."

If you are going to use the Bible to make your argument, at least use it correctly. The most correct English translation of the Hebrew word "ratsach" in the Sixth Commandment is "Thou Shalt Not Murder."

A murder is an unlawful taking of one's life. An execution is lawful.

Posted by: TarlsQtr1 | Apr 3, 2013 12:22:19 PM

"Get him drunk and then kill him."

Well, if you use "drunk" in a broad sense, going beyond alcohol into other intoxicants, that is indeed what they intend to do.

TarlsQtr1 beat me to the translation issue. The King James Version is one of the great works of the golden age of English literature, but as a translation it has some problems, and this is one of them.

Posted by: Kent Scheidegger | Apr 3, 2013 2:49:32 PM

"Just to be clear here, the idea is that he wasn't charged with rape, but aggravated murder, which here entails rape as part of the aggravation and the jury found that it occurred since it is required for a jury to determine the facts required in such cases under Ring v. Arizona? Do I have that right?"

Correct. ORC 2929.04 requires one or more aggravating factors to be proved beyond a reasonable doubt, and in this case the jury found two, one of which was rape. The other was purposely causing the death of someone under the age of 13.

Posted by: Kent Scheidegger | Apr 3, 2013 2:58:32 PM

The state generally doesn't decide to act based on what a specific religion says and yes since execution is provided as a penalty for any number of crimes, the term as originally understood meant "murder." Likewise, another commandment wasn't about telling someone they don't look fat, but more like false witness akin to false testimony. Still, some do think that means "thou shall not kill," underlining the problem with finding the right commandment translation for those public displays though some aren't that particular.

Posted by: Joe | Apr 3, 2013 3:36:55 PM

Joe --

Liberty1st's argument is pure nonsense. Virtually no normal person, religious or not, believes that ALL killing is prohibited no matter what. Self-defense and war against a sadistic aggressor are the two obvious examples.

The only sensible question, which Liberty1st attempts to stifle by theocratic absolutism, is IN WHAT CIRCUMSTANCES is it moral to kill.

Anyone who denies this is just being deliberately obtuse.

Posted by: Bill Otis | Apr 3, 2013 3:47:24 PM

"ratsach" in the Sixth Commandment is "Thou Shalt Not Murder." :: TarlsQtr1

Well put.

If not as obvious to y'all as it was to my 8-yr-old nephew, "Thou shalt not kill refers to murderous killing,
not self-defence, not accidental, not in just warfare.
---===---E.g.: "that the manslayer die not...any person [who killed] unawares"--Num 35:12,15

Copious Biblical precepts as well as one principle authorise people and societies to kill murderers:

Gen 9:6 Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man. [principle]
Num 35:31 Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.

Acts 25:11 For if I [Paul] be an offender, or have committed any thing worthy of death, I refuse not to die...
Rom 13:3-4 For rulers are not a terror to good works, but to the evil....But if thou do that which is evil, be afraid; for he beareth not the sword in vain...

No Scriptural contradiction exists, herewith.

Posted by: Adamakis | Apr 3, 2013 4:12:14 PM

TarlsQtr1 and Adamakis --

Liberty1st is just one of an increasingly common breed in the abolitionist crowd. Most of the time, they lash out at anyone citing Christian doctrine as an unwashed cowboy wahoo, but are happy to turn right around and beat you over the head with THEIR version of religion.

Posted by: Bill Otis | Apr 3, 2013 4:24:57 PM

Idiot. What a blithering idiot. Doesn't he know by now that raping is FAR worse than murdering? After all, we don't have a murderer's registry that will heavily restrict him once he gets out of jail and off parole.

***sarcasm off***

The point here is we have someone who should NEVER see the light of day outside bars, ever again, regardless of whether he raped or murdered (or both). As a previous offender, that should alone be the key.

But this is the type of case that ratchets up the sex offender frenzy up a storm, so that totally unrelated types of crimes are further legislated, which takes away from resources that would normally go to preventing crimes such as this nature, or at least in providing effective deterrence measures, whatever they may be.

Posted by: Eric Knight | Apr 3, 2013 4:43:42 PM

Bill, I find various sides use religious texts in a simplistic way.

Posted by: Joe | Apr 3, 2013 4:50:19 PM

"But this is the type of case that ratchets up the sex offender frenzy up a storm..."

Yeah, funny how raping and killing a six-month-old tends to upset folks.

Posted by: Anon | Apr 3, 2013 5:29:11 PM

bill, you know that a defense attorney is stuck with the case and client that she has - and some are just plain losers :)

Posted by: Erika | Apr 3, 2013 6:03:25 PM

Maybe we just have a legal system here not a justice system. With justice being just an occasional side effect..

Posted by: Ralph | Apr 3, 2013 6:12:23 PM

Erika --

I believe defense counsel can refuse a case or resign from one if they have been unable to develop a cooperative relationship with the client. I would not be able to cooperate with this client unless he considered getting punched in the mouth "cooperation."

Posted by: Bill Otis | Apr 3, 2013 6:45:23 PM

Although this is more or less a ridiculous argument at this stage (clemency), it does seem odd to me that the jury was not instructed on rape and/or a lower degree of homicide as lesser-included offenses. If Ohio capital-murder law requires specific intent to kill, and he had a colorable theory that he lacked such a specific intent, then he should have been entitled to instructions on lesser charges, both under state law and constitutionally (Beck v. Alabama). His theory doesn't have to be proven to require the instruction, he just has to point to some evidence to create a jury question on specific intent, and his intoxication would seem to do that.

Of course, maybe there was other overwhelming evidence of intent not recounted above. Or he could have waived his right to lesser-includeds. He wouldn't be the first defendant to make a really bad choice on that question.

Posted by: anon | Apr 5, 2013 12:55:15 PM

Autumn Breeze Carter is my niece. Her murder was very tragic to my family. No one can truely understand how much we miss her and wish she was here. As for Steve, that pos needs to die. I HATE HIM AND CAN NOT WAIT FOR HIM TO BE DEAD!!!! My sister (Autumn's mother), my mother (Autumn's grandma), and I will be viewing the execution on May 1st, 2013. I CANT WAIT TO WATCH HIM DIE. It will finally bring Justice to my beautiful niece. *RIP Autumn. <3

Posted by: Kaylee Bashline | Apr 6, 2013 4:28:22 PM

Ms. Bashline: I am truly saddened by your loss. I hope that Kasich lets justice be done on this one.

Posted by: federalist | Apr 7, 2013 12:52:28 AM

bill, i couldn't represent this guy either - he is the ickiest of icky pervs. i am glad that there are people able to represent someone who committed such a horrific crime, but i am just not one of them :)

anon i do think his argument is plausible - but i also can't see a jury, judge, parole board, or governor in the world caring what his ultimate intention was - this guy raped and murdered a baby. i believe it is beyond our capacity as humans to look beyond that.

Ms. Bashline, i pray that your family will be able to find peace.

Posted by: Erika | Apr 8, 2013 10:02:59 AM

I'm with fed and erika here. Good riddence to bad rubbish. You also have my prayers Ms. Bashline.

Posted by: rodsmith | Apr 9, 2013 11:48:39 PM

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