After a woman turned down her drunken boyfriend for sex he sought out her 6-month old baby in anger. As reported by the Huffington Post, the convicted man is now claiming that yes, he did rape the baby, but he didn't intend to commit murder as well.
S.S., 46, assaulted A.C. to the point that it killed her. Joseph Wilhelm and Tyson Fleming, S.S.'s attorneys, are arguing that the baby died only because S.S. was too drunk to notice that his attack would end in her death.
The murder took place in Ohio and the law in Ohio states that an intention to kill warrants the death sentence.
S.S.'s attorney's, in a statement to the Ohio Parole Board, wrote, "The evidence suggests that (A.C.'s) death was a horrible accident…Despite the shocking nature of this crime, (S.S.'s) death sentence should be commuted because genuine doubts exist whether he even committed a capital offense."
The attorneys allege that since their client was never charged with rape the jury could only convict or acquit him of aggravated murder.
Rape was included in S.S.'s indictment – it is one of the factors that made him eligible for the death penalty.
Ohio law states that an aggravated murder committed in the course of another crime is an element than can make the accused eligible for capital punishment. The other crime could be a burglary, robbery, arson, killing a police officer – or killing a child.
Prosecutor James Mayer said that S.S., using his abuse of alcohol as an excuse for his actions, committed "the purposeful murder of a helpless baby girl." In Mayer's own statement to the board he said that A.C.'s injuries were consistent with the act of homicide. He wrote, "The horrific attack upon (A.C.) showed much more than Smith's stated purpose."
As far as not charging S.S. with raping A.C., Mayer said that it wasn't clear why S.S. wasn't charged. It also wasn't part of the strategy of the trial.
On the evening of September 28, 1998, S.S. went to his girlfriend, K.F., A.C.'s mother, and was turned away for sex.
At three that next morning, S.S. returned to K.F.'s bed, and put A.C. beside her. K.F. noticed that her baby was not breathing. K.F. accused S.S. of killing A.C. and then she ran to a neighbor for help.
S.S. had drank several beers before the murder, and eight hours later his blood alcohol content registered at 0.123 percent.
Prosecutors argued that S.S. killed A.C. as he was angry with K.F. for withholding sex.
The attack is thought to have lasted 30 minutes. Expert witnesses believe that S.S. inadvertently suffocated the girl when he had gotten on top of her during the rape.
Ohio State University law professor and death penalty expert, Doug Berman, commented, "…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."
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