In a desperate bid to save his life, convicted Ohio baby killer Steven Smith has asserted that he never meant to murder his girlfriend’s six-month-old daughter – only to sexually assault her.
The girl, Autumn Carter, of Mansfield, Ohio, died in 1998 because Smith was too drunk to realize his sexual assault was killing the child, Smith’s attorneys planned to tell the Ohio Parole Board Tuesday. And Ohio law is clear, they say: a death sentence requires an intent to kill the victim.
‘The evidence suggests that Autumn’s death was a horrible accident,’ his attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.
They continued: ‘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, 46, was never charged with sexual assault, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.
The Richland County prosecutor says Smith continues to hide behind alcohol as an excuse, and calls Smith’s actions ‘the purposeful murder of a helpless baby girl.’
Prosecutor James Mayer told the board in his own written statement that the girl’s injuries are consistent with a homicide that contradicts Smith’s claim he didn’t intend to kill the girl.
‘The horrific attack upon Autumn Carter showed much more than Smith’s stated purpose,’ Mayer said.
Mayer said Monday he didn’t know why Smith wasn’t charged with rape, but said it wasn’t part of a trial strategy.
The attack happened early in the morning of September 29, 1998, in the Hardwood Drive apartment of the girl’s mother, Kaysha Frye, a 19-year-old woman Smith, then 31 years old, had been dating about six months.
Frye was awakened after 3am by a naked Smith, who placed Autumn beside her in bed, according to records prepared for the parole board hearing.
Frye realized the girl wasn’t breathing, told Smith he’d killed her, then ran to a neighbor’s house for help.
Smith, known to consume as many as 12 beers a day, had had several beers earlier in the evening and had a blood-alcohol content of .123 – well above the legal limit – when he was tested almost eight hours later, at 11am, records show.
Smith had unsuccessfully tried to have sex with his girlfriend the evening before the attack, according to records.
The prosecutor argued that Smith’s assault of the girl was revenge for Smith’s failure to perform with Frye.
Smith’s attorneys dispute this, saying the girlfriend was not upset with Smith.
Prosecutors presented evidence at trial that Smith’s attack lasted as long as 30 minutes, during which time Smith beat the girl to death.
Expert witnesses for Smith conclude he may have accidentally suffocated the girl within three to five minutes while he lay on top of her, according to Smith’s clemency petition.
Autopsy showed that little Autumn died of trauma and compression asphyxia. The child also suffered optical nerve damage consistent with being violently shaken.
Smith’s attorneys have an uphill battle in their argument because of the ‘moral repugnancy’ surrounding the claim of partial innocence, said Doug Berman, an Ohio State University law professor and death penalty expert.
‘But 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,’ Berman said.
Frye, now 35, told the Mansfield News Journal that she wants Smith to die for the killing of her daughter, who would have been 15 today.
The mother recalled how on the night of her daughter’s murder, her then-boyfriend walked into her bedroom in the middle of the night and place the child’s limp body in her arms.
‘Her head just went over my arm,’ Frye said. ‘I said, “You killed my baby! You killed my baby!”’
Police officers who responded to Frye’s apartment found a pair of men’s pants under Autumn’s indoor swing, the girl’s pink sleeper under a coffee table and a shredded diaper on the floor.
Smith was discovered a short time later drunk and disorderly outside the home. He was convicted of the baby’s murder in 1999 and sentenced to death.
Eleven people will speak to the Parole Board Tuesday, among them Autumn’s aunt, Kaylee Bashline. She was six years old when her niece was killed.
‘I can remember the police officer showing up at our house. I remember my mom dropping to the ground, crying,’ Bashline said. ‘It still affects our family to this day.’
The panel is expected to make its recommendation as to Smith’s plea for clemency to Gov John Kasich in about a week.
Smith is scheduled to die May 1. If executed, he would become the 51st inmate put to death in Ohio since the state resumed executions in 1999.
The state has enough of its lethal injection drug, pentobarbital, to execute Smith and two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.