Murder case drops death penalty

Building owner charged in deaths of 2 city firefighters

3/10/2017

Ray Abou-Arab, right, with his attorney, Sam Kaplan, reacts to hearing that he no longer faces the death penalty if convicted during a pretrial hearing in Lucas County Common Pleas Court. He is charged with setting a blaze that killed two Toledo fire- fighters in 2014.

THE BLADE/AMY E. VOIGT
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Ray Abou-Arab couldn't stop himself from grinning Thursday as prosecutors took the death penalty off the table in his aggravated murder case.

Held in the Lucas County jail for more than three years on charges he set a fire that killed two Toledo firefighters, Mr. Abou-Arab, 64, of Oregon now faces a maximum penalty of life in prison without parole if he is convicted of aggravated murder in the deaths of Toledo Fire Pvts. Stephen Machcinski, 42, and James Dickman, 31. The two firefighters died from burns and exposure to carbon monoxide after becoming trapped inside a two-story apartment building.

Mr. Abou-Arab is to go to trial April 24 in Lucas County Common Pleas Court.

At a brief pretrial hearing Thursday, Jeff Lingo, chief of the special units division for the Lucas County Prosecutor’s Office, asked Judge Stacy Cook to dismiss the capital specifications, saying that prosecutors had “re-evaluated the evidence and the circumstances surrounding the case” and discussed the matter with the victims’ families as well as fire and police officials.

“As this court is well aware, the Ohio Rules of Professional Conduct state that a public prosecutor’s duty is to seek justice,” Mr. Lingo said. “To fulfill that duty prosecutors must continuously evaluate their cases based on the law and the evidence. As cases progress, the law and evidence as well as the circumstances surrounding that case may change.”

Robert Miller, chief of the criminal division for the Lucas County Prosecutor’s Office, said he'd met with relatives of the two firefighters as well as police and fire representatives, all of whom were in court.

Judge Cook then asked each to stand then, one by one, asked them whether prosecutors had explained their request, if they understood it, and if they were in agreement.

Beth Hoye, sister of Mr. Machcinski; Jamie Dickman, wife of Mr. Dickman; Karen Marquardt, assistant Toledo fire chief; Jeffrey Koenigseker, president of Toledo Firefighters Local 92, and Toledo Police Capt. David Mueller each said they were in agreement.

Mr. Abou-Arab, 64, is charged with two counts of aggravated murder, two counts of murder, eight counts of aggravated arson, and one count of tampering with evidence for allegedly setting a Jan. 26, 2014, fire at a Magnolia Street building he owned.

His had been the only pending death-penalty case in the county. By state law, prosecutors may only seek capital specifications in certain circumstances. In Mr. Abou-Arab’s case, the death specifications were brought by a grand jury on two grounds: for the purposeful killing of two or more persons and for committing aggravated murder in the commission of aggravated arson.

At the time of Mr. Abou-Arab’s indictment, Lucas County Prosecutor Julia Bates said she thought the death-penalty specifications were appropriate.

“If you look at drug robberies, bar robberies, husband-wife domestic crimes, and then you look at an arson where in the middle of the afternoon where people live and firemen died, it’s just very, very difficult to understand how anyone could ever do that,” Mrs. Bates said at the time. “It’s a pain in my heart. And it’s a pain in the heart of everyone in our community and in our state and in our country.”

Neither prosecutors nor Mr. Abou-Arab’s defense attorneys, Pete Rost and Sam Kaplan, could comment Thursday because of a gag order in the case.

Some defense attorneys experienced in capital cases said they thought seeking the death penalty in Mr. Abou-Arab’s case was a stretch.

“I can see where public outcry would [support seeking the death penalty], but legally there are some shortcomings,” said Toledo attorney Dave Klucas, who has represented 15 defendants on capital charges.

“I haven’t seen the evidence, but to prove beyond a reasonable doubt that this was a purposeful killing of two or more people is going to be really difficult because nobody really knows what the firefighters are going to do when they get there,” Mr. Klucas said. “Purpose is very specific. You have to have the specific intent to kill somebody else.”

In this case, the state would have had to prove Mr. Abou-Arab knew firefighters would enter the burning building.

“How the firefighters go about fighting the fire — he has no idea,” Mr. Klucas said. “That’s very difficult to prove.”

Jeff Gamso, a former Toledo defense attorney who now works for the Cuyahoga County Public Defender’s Office, agreed.

“The claim somehow is that he purposely killed those firefighters, and that’s absurd,” he said. “Nobody starts a fire with the expectation, with the purpose of killing somebody who’s going to come and try to put it out.”

Mr. Gamso, a self-described anti-death penalty activist, said Lucas County has traditionally reserved the death penalty for the “worst of the worst” cases, and he does not think this one falls into that category.

“If you burn down your own building, you do it to get out from under the building and collect the insurance,” he said. “You don’t do it in the hope that a firefighter will die along the way. It is a terrible, unintended consequence.”

From a practical standpoint, executions in Ohio have been on hold for the past few years.

Ohio last put to death an inmate in January, 2014, when it took an unusually long 26 minutes for Dennis McGuire of Montgomery County to die from an injection of two drugs, the anti-anxiety medication midazolam and the opiate painkiller hydromorphone. Witnesses said he appeared to struggle against his restraints and make choking and snorting sounds.

While execution dates for three inmates on Death Row had been scheduled for later this year, those were again postponed when, on Jan. 26, a federal magistrate judge blocked plans to use a new three-drug process. Judge Michael R. Merz in Dayton declared the inmates could be subjected to cruel and unusual punishment.

Mr. Klucas said that because Mr. Abou-Arab is 64, even if he were to be sentenced to death, he would likely die of natural causes in prison before his execution. The time and cost involved in gaining a death sentence ultimately could be an empty gesture, he said.

“The difference between life without parole and the death penalty is the cost,” he said. “And the difference in the cost is considerable — both the prosecutorial cost and the societal cost. I don’t know if that was a factor in their thinking or not.”

Dropping the death-penalty specifications means Mr. Abou-Arab’s trial is not likely to take as long. The court had set aside three weeks — roughly a week to seat a jury, a week for the trial, and a week for the sentencing phase in which defense attorneys provide reasons why the defendant should not be sentenced to death.

The sentencing phase no longer will be necessary, and jury selection should not take as long because prospective jurors will not have to be individually questioned on their views about the death penalty.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.