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For the second time in two weeks, a federal jury Tuesday refused to order the death penalty for a man convicted of bombing a U.S. embassy in Africa. Telling federal Judge Leonard B. Sand of the U.S. District Court for the Southern District of New York that they could not reach a unanimous verdict, the jury found that life in prison was the appropriate punishment for Khalfan Khamis Mohamed, 27, of Tanzania, who was found guilty of murder in May for the 1998 bombing of the embassy in Dar es Salaam, Tanzania that killed 11 people. In June, the jury refused to give the death penalty to Mohamed Rashed Daoud Al-’Owhali, who was found guilty in the bombing of the embassy in Nairobi, Kenya that killed 213 people, also on Aug. 7, 1998. Both Mohamed and Al-’Owhali, along with two other men, were found guilty in May of being part of a conspiracy to attack Americans and American installations, as directed by fugitive Osama Bin Laden. But Mohamed’s capital case differed in one significant respect from that of Al-’Owhali because of one of several aggravating factors a jury is instructed to consider in weighing a capital verdict: whether the defendant may pose a danger in the future, even while behind bars. Much of the two-week capital phase of Mohamed’s trial dealt with the brutal assault on Corrections Officer Louis Pepe at the Metropolitan Correctional Center on Nov. 1 by Mamdouh Salim, a co-defendant of Mohamed. In what prosecutors believe was the first part of a plan to take hostages and escape, Salim allegedly used a home-made knife fashioned from a comb to stab Pepe through the eye, leaving him permanently disabled. Although Mohamed was not named in the indictment charging Salim, prosecutors strove to show that he joined in the assault with his fellow cellmate. One FBI agent testified that a note was found in the cell reading, “We have captured the tenth flr[sic] in MCC and we have several lawyers and officials. They are under our full control.” And a corrections officer said that after a delay of 15 minutes in getting into the unit, he found Mohamed outside the cell “in a fighting stance,” and that Mohamed punched him in the mouth. Prosecutor Patrick Fitzgerald told the jury during his closing argument that Mohamed had “ice in his veins” and would kill again unless he was executed. “If he’s not sentenced to death, he’ll be sitting there, ticking like a time bomb, waiting for another Officer Pepe,” Fitzgerald said. While defense lawyer David A. Ruhnke acknowledged that Mohamed fought the guards, he argued that he did so only to protect himself. And Ruhnke and co-counsel David Stern insisted that. Mohamed was not part of the attack. They said guards retaliated against him by breaking his eye socket and nose. Both lawyers focused on the futility of executing Mohamed. Stern told the 12 jurors during closing arguments: “Send him to jail and he will be quickly forgotten. Kill him, and you guarantee immortality.” And in checking the section of the verdict sheet dealing with aggravating factors, the jury said it could not unanimously find that Mohamed “poses a continuing and serious threat to the lives and safety of others with whom he will come in contact.” Similar to its verdict in the capital phase for Al-’Owhali, a majority of the panel, seven jurors, found that, were Mohamed to be executed, “he will be seen as a martyr and his death may be exploited by others to justify further terrorist attacks.” As mitigating factors, nine jurors felt that Mohamed “acted out of sincere religious belief” that he was defending Islam against the United States. Rewarding the defense lawyers for a theme they stressed throughout the capital phase, 11 of the 12 jurors found that “others of greater culpability in the murders will not be sentenced to death.” The jury reached its verdict despite testimony that in a 1999 FBI interview, Mohamed said he was proud of his role in the bombing and would “do it again,” if he could. But none of the jurors felt that his lack of remorse was a factor to weigh heavily in reaching a verdict. Following the verdict, a relieved Ruhnke said the attack on Pepe was “the flagship” of the government’s pitch for the death penalty, and that the jury was clearly not convinced. While Ruhnke said his client was “afraid for his life,” during the capital phase, he added, “I don’t think terrorists are deterred by prosecution in general or the death penalty in particular.” “This makes him less of a martyr,” Ruhnke said. “If there is a deterrent, it’s that more young men fear a life of bleak imprisonment than they fear a death sentence.” Mohamed was one of 18 co-defendants, including Bin Laden, who have been indicted by the government. Salim still awaits trial for his alleged role in the conspiracy and the attack on Pepe. U.S. Attorney Mary Jo White of the Southern District of New York issued a statement after the verdict, saying, “In the government’s view, the just and appropriate sentence for [Al-'Owhali and Mohamed] was the death penalty.” “But, in our system of justice, the ultimate sentence of death requires the unanimous vote of all 12 jurors,” White said. “That is a critical safeguard, and we respect both the process and the jury’s efforts to reach a unanimous verdict.” Assistant U.S. Attorneys Kenneth M. Karas, Michael J. Garcia and Paul W. Butler joined Fitzgerald in prosecuting the case.

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