May God Have Mercy

It was a simple carryout robbery.

That's how the prosecutor described it to an AP reporter.

Just an ordinary robbery. Except that the owner of the carryout, Sowhail Darwish, was killed, shot to death by Abdullah Sharif Kaazim Mahdi.

Mahdi was tried in 1994. He was convicted of aggravated murder and sentenced to die. The good people of the State of Ohio intend to kill him on Thursday.

The question then, and the question now, is whether Mahdi intended to kill Darwish. There's every reason to doubt that he did. But (isn't there always a "but"?) his lawyers stalled on putting that evidence before the jury.

This requires a bit of explanation. Aggravated murder is the only capital crime in Ohio. In order for someone to be convicted of aggravated murder, the person must intend to kill. If Mahdi didn't intend to kill, then the crime would have been involuntary manslaughter. If it was involuntary manslaughter, he would not be facing the death penalty.

As I said, there's every reason to doubt that Mahdi intended to kill Darwish (or anyone else). His actions, his statements at the time and later, and the medical evidence all suggest that, at most, he intended to shoot Darwish in the arm. By a fluke, then, Darwish died. Involuntary manslaughter. A sentence of no more than 25 years.

Except that Mahdi's lawyers didn't put that evidence in front of the jury when they were deciding whether he should be convicted of aggravated murder. Instead, they saved the evidence and used it after the conviction. They tried to convince the jurors that because there was "residual doubt" about Mahdi's intent, they shouldn't impose a death sentence but should keep him in prison for no fewer than 30 years.

That approach, keeping the evidence of innocence from the jury until sentencing, is incomprehensibly foolish. But it's what Mahdi's lawyers did.

Residual doubt is powerful mitigation. Jurors may find the defendant guilty beyond a reasonable doubt, but still harbor uncertainty. And if they're not sure he's guilty, they're not likely to call for his death. In 1991, in State v. Watson, the Ohio Supreme Court specifically held that residual doubt was proper mitigation. So directing the jury's attention to residual doubt at sentencing is appropriate, even if hiding the evidence until then was nonsensical.

But Mahdi's lawyers also offered the jury a hard-to-swallow reason not to kill him. The crime was all about race and caused by the movies Menace II Society and Malcolm X. The effect was to distract the jury from the substantial evidence of residual doubt.

After Mahdi was sentenced to die, his case went to the court of appeals. (I was one of his lawyers in that court.) We argued, among other things, that:

• The jury should have been given the opportunity to find him guilty of the lesser offense of involuntary manslaughter.
• His lawyers were constitutionally ineffective for hiding the evidence that he was innocent of aggravated murder until the sentencing.
• His death sentence should be set aside because of residual doubt of his guilt.

And then, after we'd briefed and argued the case, while we were waiting for the court of appeals to rule, the Ohio Supreme Court overruled Watson and declared that residual doubt could not mitigate. The case is State v. McGuire, and its discussion of residual doubt is, in the words of Justice Pfeifer's separate opinion, "simply wrong."

Here's the court's position:

Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Watson, 61 Ohio St.3d at 20, 572 N.E.2d at 112 (Resnick, J., dissenting). Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. "Thus, if residual doubt is reasonable and not simply possible or imaginary, then an accused should be acquitted, and not simply have his death sentence reversed." Id.

Got that? If you weren't sure enough of the guy's guilt to kill him, you wouldn't have found him guilty in the first place. Residual doubt is just for wusses who don't have the guts to kill.

Justice Pfeifer knew better.

Certainly, residual doubt is an appropriate consideration in only a few cases. Still, its use should not be considered "illogical." It is entirely logical to be certain beyond a reasonable doubt as to a man's guilt, yet not be certain enough to send him to his death. Residual doubt acknowledges our humanity—our ability not just to spit out data, but to recognize the subtle shadings that are a 406 part of life. The factoring in of humanity when dealing with its ultimate decision is both relevant and logical.

Anyway, here's the scene: When the case was tried, residual doubt was a proper mitigating factor. When it was appealed, residual doubt was a proper mitigating factor. Trial counsel and appellate counsel urged a life sentence based on residual doubt. But while the case was in the court of appeals, the Supreme Court said it couldn't be considered. Two of the judges in the court of appeals accepted that. James Sherck was the third judge, and he didn't.

I vehemently dissent from the affirmance of the death penalty in this instance. Specifically, I disagree with the majority's handling of appellant's fourteenth assignment of error.

While State v. McGuire, supra, recently eliminated consideration of residual doubt during the sentencing phase of the trial by overruling State v. Watson, supra, it is fundamentally unfair to retroactively apply McGuire to this case. The unfairness occurs because the defense withheld certain evidence going to appellant's intent in the guilt phase, undoubtedly believing it to be more persuasive as going toward residual doubt in the penalty phase. In my view, this is critical because that evidence creates doubt as to appellant's mens rea at the time of the shooting.

. . .

if the Watson standard which existed before McGuire, is applied, a substantial residual doubt exists as to appellant's intent which, when combined with some degree of emotional instability to which the psychologist testified and appellant's youth, results in a body of mitigating evidence which I believe outweighs the aggravating circumstance proven.

As I indicated at the outset, I believe applying McGuire after the trial, even after the appeal was heard, is fundamentally unfair in view of the fact that the defense clearly tailored its case to address residual doubt in the mitigation phase.

I would find appellant's sentence was arrived at erroneously or in the alternative set aside the conviction for a due process violation and remand for a new trial at which appellant could introduce the evidence going to intent at the guilt phase.

That opinion is attached as an exhibit to Mahdi's clemency petition. More telling is another exhibit, the letter from Sherck to the Parole Board urging clemency. (The clemency petition is here and the exhibits are here.)

The Parole Board voted 5-2 to deny clemency.

So there you have it. As AP says,

No one really knows if Vernon Smith meant to shoot and kill a carryout owner.

That's really the question. There's serious doubt. Enough that even those who favor the death penalty should step away from this one. But the Ohio Supreme Court says that it's irrational to avoid killing just because you're not sure.

Free him or kill him. No in between.

That's just silly.

And now it's up to Governor Ted.

Mahdi will be number 33. Jesus was, they say, 33 when he was crucified. Ted is a Methodist minister. One can only hope.