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Convinced that life in prison is the tougher sentence, and that executing Mohamed Rashed Daoud Al-’Owhali would make him a martyr, a jury on Tuesday refused to impose the death penalty on the convicted mass murderer. After five days of deliberations, the same jury that found Al-’Owhali guilty of killing 213 people with a truck bomb at the U.S. Embassy in Nairobi, Kenya on Aug. 7, 1998, could not agree on capital punishment. The verdict was a victory for defense lawyers Frederick Cohn and David Baugh, who had argued before federal Judge Leonard B. Sand, of the U.S. District Court for the Southern District of New York, that Al-’Owhali, 24, was acting in defense of his religion and his people when he agreed to be part of the conspiracy that culminated in the bombing. They also argued that in any event, ordering his death would be a pointless act that only contributed to a rising cycle of violence. “I would say I am almost as numb as my client,” Cohn said later. “This is an extraordinary victory for a system that was really put to the test.” “The government sought the death penalty because it concluded that it was the just punishment for this defendant and this crime,” U.S. Attorney Mary Jo White said later. “But the imposition of the death penalty is uniquely a matter for the jury to decide, and we respect their verdict.” The jury’s verdict was also a testament to how difficult it is for prosecutors to obtain a capital verdict in the federal system. The jury agreed unanimously beyond a reasonable doubt on the “gateway factors,” such as the intentional killing of victims, and “statutory aggravating factors,” such as killing more than one person in a single episode. But the jury started to split when it reached the nonstatutory aggravating factors — those specific to the circumstances of the case and Al-’Owhali’s intentions. While agreeing that the attack was motivated by a desire to kill high-ranking U.S. officials and cause injury and loss to the victims, the jury could not reach unanimity on whether Al-’Owhali continued to pose a threat, even while in prison. MITIGATING FACTORS Only eight jurors agreed it was a mitigating factor that others who were just as culpable as, or more culpable than, Al-’Owhali will not face the death penalty. Mitigating factors need only be proven by a preponderance of the evidence. And 10 of the jurors agreed that mitigating against death was the fact that Al-’Owhali was motivated to attack a U.S. installation by his religious beliefs and his desire to protect the Muslim community from a threat posed by America. Additionally, 10 jurors agreed that under the alleged guidance of the leader of the anti-American conspiracy, fugitive Osama Bin Laden, the Nairobi embassy was equated in Al-’Owhali’s mind with a military installation — and he was at war. Five of the jurors agreed that Al-’Owhali’s indoctrination in Muslim teachings that promoted holy war and martyrdom were a mitigating factor. The jury then exercised its discretion to consider mitigating factors not raised by the defense directly, although mentioned by Baugh in his closing argument. “We find that executing Mr. Al-’Owhali makes him a martyr,” the forewoman said. She then said that imposing the death penalty would “not necessarily alleviate the suffering of the victims” and, in a somewhat confusing statement to include among mitigating factors, that “lethal injection is very humane and the defendant will not suffer.” The forewoman closed by adding two other mitigating factors: that “life imprisonment is the greater punishment,” and that “Al-’Owhali was raised in a completely different culture and belief system.” SOUTH AFRICAN ISSUE The verdict was heartening to David Ruhnke, who next Tuesday begins the defense of Al-’Owhali’s co-defendant, Khalfan Khamis Mohamed, in the trial’s second capital phase. It now seems an uphill climb for prosecutors, unable to convince a jury unwilling to sentence a defiant Al-’Owhali to death for the murder of 213 people, to now convince the same panel that Mohamed should die for his role in the bombing of the U.S. Embassy in Dar es Salaam, Tanzania, also on Aug. 7, 1998. After Judge Sand excused the jury, Ruhnke entered the well and hugged lawyers for Al’-Owhali. Ruhnke heard more good news from Sand in a bench ruling following the Al-’Owhali verdict. Over the strenuous exception of prosecutor Patrick Fitzgerald, Judge Sand said he would allow the jury to be given a stipulation about how Mohamed was brought to the United States. Following the bombing, Mohamed fled Tanzania, which has the death penalty, to South Africa, which does not. In some circumstances under South African law, that country does not permit the extradition of a defendant to a country that has the death penalty, but U.S. officials were able to secure the extradition of Mohamed to the United States with the approval of a lower court in South Africa. However, the day before Mohamed was convicted of conspiracy and murder charges in the U.S. District Court for the Southern District of New York, the high court of South Africa ruled that his extradition was in violation of South African law. Judge Sand said the information would be given to the jury for a limited purpose — in the context of whether those as culpable as Mohamed were not being subjected to the death penalty — during the jury’s consideration of factors mitigating against the death penalty for Mohamed. “I am aware the government has taken the position that the circumstances concerning the court of South Africa do not relate to the background of the defendant and the circumstances or commission of the crime,” he said. “And counsel for Mr. Mohamed argued that there was another, broader concept — that is to be assured that the imposition of a death sentence is not arbitrary or random.” Sand, before reaching the matter of South Africa, rejected a challenge to the court’s jurisdiction made by Ruhnke. In his defense of Mohamed, Ruhnke must deal with one element not present in the Al-’Owhali penalty phase — the question of future dangerousness. During the penalty phase, the jury will hear some evidence of a Nov. 1 incident at the Metropolitan Correctional Center. According to prosecutors, one of Mohamed’s alleged co-conspirators, Mamdouh Salim, attacked corrections officer Louis Pepe with a home-made knife fashioned out of a comb. Pepe was stabbed in the eye, and the tip of the knife penetrated his brain, leaving him near death and now permanently disabled. Salim is still awaiting trial for his alleged role in the Bin Laden conspiracy. While Mohamed was not charged in connection with the incident, he may be the unindicted co-conspirator mentioned in the indictment charging Salim with the attack. Prosecutors have said Mohamed was involved.

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