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Defense attorney David Baugh told a federal jury Tuesday in Manhattan to ask themselves what would be accomplished by voting to execute convicted mass murderer Mohamed Rashed Daoud Al-’Owhali. Placing the onus for “killing” Al-’Owhali squarely on the panel, Baugh used his closing argument in the death penalty phase of the terrorism trial as an emotional platform for a discussion of moral equivalency and the futility of taking a human life. “What is your verdict going to accomplish?” Baugh asked. “What are you going to pull off by becoming killers?” After being charged on the law by federal Judge Leonard Sand of the U.S. District Court for the Southern District of New York, the jury is now weighing whether to impose the death penalty for Al-’Owhali, who was convicted last week of killing 213 Americans and Kenyans in a truck bomb explosion at the U.S. embassy in Nairobi, Kenya, on Aug. 7, 1998. Al-’Owhali was also one of four men convicted of agreeing to attack Americans and American installations anywhere in the world as part of a conspiracy directed by fugitive Osama Bin Laden. Once the jury agrees on a penalty for Al-’Owhali, it will hear evidence in the capital phase of his co-defendant, Khalfan Khamis Mohamed, who was convicted of killing 11 people in the bombing of the U.S. embassy in Dar es Salaam, Tanzania, on the same day. Also yesterday, Assistant U.S. Attorney Michael Garcia, who closed for the prosecution, beseeched the jury to vote for execution, saying Al-’Owhali showed no remorse for his actions, which included transporting the bomb to the embassy in Nairobi. Garcia reminded the jury of the painful testimony of bombing victims and those who had lost loved ones in the attack. “Those witnesses were brought into this courtroom by this defendant for the death and the pain and the suffering he caused,” Garcia said. “Now Al-’Owhali must be held accountable for his crimes and he must face the full measure of justice.” The defense case in the penalty phase was shorter than expected. On Monday, former Attorney General Ramsey Clark testified about the impact that the U.S.-led sanctions against Iraq and Saddam Hussein has had on innocent children in that country. The testimony was elicited by the defense to show that Al-’Owhali believed he was protecting his people and his religion by signing on to attack Americans and drive them from the Middle East. The jury was also shown a television interview with former Secretary of State Madeline Albright, who, when asked about the impact of the sanctions, said, “I think this is a very hard choice, but the price, we think the price is worth it.” “When I mention Iraq, it is not meant as a justification,” Baugh said. “However, I do want you to appreciate there is a lot of sorrow over there. It doesn’t make sense to pour any more blood on all that has already been spilled.” Tuesday, the defense showed the jury a BBC production called “The Koran and the Kalishnikov,” which documented how the U.S. trained and funded rebels to help them oust the Soviet Union from Afghanistan. Once the Soviets were expelled, the groups left behind formed the core of Bin Laden’s organization, and the foot soldiers for what prosecutors argue is an ongoing war against the United States. Baugh said one of those foot soldiers was a young and impressionable Al-’Owhali, who he described as “deeply religious, concerned with his nation,” and a person whose “motive doesn’t involve greed or avarice or any of those things.” “[What does it mean] for you to stand up and say that the reason he should die is because he’s been trained in terrorist techniques?” Baugh said. “We sent the people to teach him. The reason he knows these tactics is because we opened the bottle and gave them to him.” “I will concede by your verdict that the defendant voluntarily chose to do what he did, voluntarily gave up his life to fight the government of Afghanistan, risked his life to defend his community and his religion,” Baugh said. “There are hundreds, even thousands like him — so offended by what they perceive is happening in that part of the world that they are willing to kill themselves.” Baugh focused on the standards the jury will consider in weighing whether to impose the death penalty: Aggravating factors must be proved beyond a reasonable doubt, but those factors that mitigate against capital punishment for Al-’Owhali need only be shown by a preponderance of the evidence. If the jury feels that the aggravating factors outweigh the mitigating factors, he said, the next step is to decide whether death is appropriate. “The question is, ‘Appropriate to what?’ ” Baugh asked. “ And no one tells you. Appropriate to the suffering of the victims? Appropriate to the best interests of society and to the world at large?” However, Garcia, the prosecutor, argued that “the horror the victims suffered” was an aggravating factor that outweighed all other considerations. Baugh devoted much of his argument to the pointlessness of taking another life and the certainty that, if spared death, Al-’Owhali will spend the rest of his life in prison. Baugh again compared the impact of sanctions on the children of Iraq and the U.S. training of Afghan rebels to the decision that Al-’Owhali made in Kenya — and the decision that is facing the jury. “Everybody has a good, logical reason why they should be allowed to kill people,” he said. “But it only makes for more killing.” And Baugh pointedly asked the jury to consider the impact if a world anticipating a sentence of death for Al-’Owhali were to learn that the jury voted a life sentence instead. “In many ways, the verdict in this case is more important than my client,” Baugh said. “The implications of this case go way beyond that — way beyond this courthouse.” In rebuttal to Baugh, Assistant U.S. Attorney Patrick Fitzgerald told the jury that Al-’Owhali “was a free man — he had a choice and he chose to kill.” Fitzgerald said that if there was ever a crime that deserves capital punishment, “it is this one.” Judge Sand then instructed the jury on how to progress through its death penalty deliberations. Should the jury, as expected, move past the first phases on the capital counts, it will consider nonstatutory aggravating factors, such as whether Al-’Owhali poses a continuing threat, the impact of his crime on the victims and their relatives, and the fact that high-ranking U.S. public officials were intended targets. The jury, Judge Sand said, should then turn to any factors that mitigate against death, such as that other members of the conspiracy will not be punished by death; that Al-’Owhali was less culpable than other members of the Bin Laden organization; that he was relatively young, 21, and had no criminal history; and that he was indoctrinated in conservative Muslim teachings which promoted Jihad, or Holy War, and martyrdom during his early years. Another factor, Judge Sand said, was “that Mr. Al-’Owhali committed the offenses for which he was convicted based upon his sincere belief, whether or not you agree with that belief, that his conduct was mandated by his religion.” Sand told the jury that the finding of an aggravating factor requires unanimity, while any one juror who is persuaded of the existence of a mitigating factor must consider that factor in his or her decision.

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