COLUMBUS, Ohio (AP) — The Ohio Parole Board on Wednesday rejected a plea for mercy by a condemned Ohio man who says he intended to rape his girlfriend's 6-month-old daughter but not to kill her, calling his crime "among the worst of the worst."
The board recommended unanimously that Gov. John Kasich allow the execution of Steven Smith to proceed next month.
The board said some arguments for sparing Smith, such as his turbulent childhood, were far outweighed by the nature of the crime.
"Smith took the life of an innocent 6-month-old infant while using the baby to sexually gratify himself," the board said. "It is hard to fathom a crime more repulsive or reprehensible in character. It is clearly among the worst of the worst."
The victim, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith's attorneys argued in court filings with the Ohio Parole Board, which heard the case last week. And Ohio law is clear, they said: A death sentence requires an intent to kill the victim.
"The evidence suggests that Autumn's death was a horrible accident," Smith's 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."
The parole board rejected this argument, saying the "ferociousness" of the attack on the baby, which trial evidence said lasted as long as 30 minutes, was proof of Smith's intention to kill.
It "stretches credulity to think that Smith had no intention to kill Autumn when he assaulted her in a manner that made death a virtual certainty," the board said.
Smith, 46, was never charged with rape, meaning the jury's only choice was to convict or acquit him of aggravated murder, his attorneys say.
However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.
Smith's attorneys did not immediately return messages seeking comment Wednesday.
The Richland County prosecutor said 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 written statement that the girl's injuries were consistent with a homicide that contradicts Smith's claim he didn't intend to kill her.
"The horrific attack upon Autumn Carter showed much more than Smith's stated purpose," Mayer said.
Mayer says he didn't know why Smith wasn't charged with rape, but he said it wasn't part of a trial strategy.
The attack happened early in the morning of Sept. 29, 1998, in the Mansfield apartment of the girl's mother, Kaysha Frye, whom Smith had been dating about six months.
Frye was awakened after 3 a.m. by a naked Smith, who placed Autumn beside her in bed, according to records. Frye realized the girl wasn't breathing, told Smith he'd killed her and then ran to a neighbor's house for help.
Smith, known to consume as many as 12 beers a day, had had several beers the previous evening and had a blood-alcohol content of 0.123, well above the legal limit for drivers, when he was tested almost eight hours later, 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.
If executed, Smith 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.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.