Condemned OH man seeks clemency; admits he meant to rape infant but didn't mean to kill her

Condemned OH man seeks clemency; admits he meant to rape infant but didn't mean to kill her
Steven Smith
Steven Smith: Didn’t know the gun was loaded

Attorneys for an Ohio man on death row are citing the letter if not the spirit of the law as the foundation of a unique plea for clemency. In a hearing before the Ohio Parole Board today, they will argue that their client intended to sexually assault his girlfriend’s 6-month-old daughter but never planned to kill her.

The inmate, 46-year-old Steven Smith, was tried and convicted of the 1998 murder of Autumn Carter.

His lawyers, Joseph Wilhelm and Tyson Fleming, acknowledge that Smith’s sexual assault of the infant was intentional. But, they maintain, the evidence presented in the case indicates that the baby died because Smith was too drunk to realize his physical actions were killing her. Under Ohio law, the death sentence is an option only in cases where there was a clear intent to kill the victim.

In a written argument presented to the board, Wihelm and Fleming claim that the child’s death “was a horrible accident,” adding:

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 was never charged with sexual assault, leaving the jury with the sole option of convicting or acquitting him of aggravated murder. The Richland County prosecutor, James Mayer, said on Monday he wasn’t sure why Smith was never charged with rape, but said it wasn’t part of a trial strategy.

Mayer told the board in his own written statement that the girl’s injuries are consistent with a homicide. Evidence presented at trial suggests that Smith’s attack lasted as long as 30 minutes, during which time he beat the girl to death. “The horrific attack upon Autumn Carter showed much more than Smith’s stated purpose,” Mayer said.

However, according to Smith’s clemency petition, expert witnesses conclude he may have accidentally suffocated the girl within three to five minutes while lying on top of her.

Doug Berman, an Ohio State University law professor and death penalty expert, observes that Smith’s attorneys have an uphill battle in their argument because of the “moral repugnancy” surrounding the claim of partial innocence. Yet, Berman adds:

If the lawyers for this defendant can legitimately assert that the evidence doesn’t show or support that this was an intentional killing, not only is it appropriate to bring this up at clemency, I think they’re obliged, representing their client appropriately, to stress this point.

Smith is scheduled to die by lethal injection on May 1.

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Howard Portnoy

Howard Portnoy

Howard Portnoy has written for The Blaze, HotAir, NewsBusters, Weasel Zippers, Conservative Firing Line, RedCounty, and New York’s Daily News. He has one published novel, Hot Rain, (G. P. Putnam’s Sons), and has been a guest on Radio Vice Online with Jim Vicevich, The Alana Burke Show, Smart Life with Dr. Gina, and The George Espenlaub Show.

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