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Published: Friday, 12/4/2009

Murderer did not intend to kill, lawyer says at clemency hearing

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - As Charlotte Darwish prepared 16 years ago to close the Woodstock Carryout where her husband had been murdered, she found a corkboard with numerous IOUs pinned to it totaling $4,000 from customers who couldn't afford to pay.

"My husband didn't deserve to die," she told the Ohio Parole Board yesterday. "My husband did belong in that neighborhood, regardless of what [Vernon] Smith said. He helped that neighborhood."

The widow of Toledo store owner Sohail Darwish offered the story to counter what Smith reportedly told a co-conspirator shortly after he robbed and shot the Palestinian immigrant on May 26, 1993.

Smith reportedly uttered an expletive, then said Mr. Darwish "shouldn't be in our neighborhood with a store, no way."

Smith Smith
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Smith, also known as Abdullah Sharif Kaazam Mahdi, is asking the parole board to recommend that Gov. Ted Strickland commute his death sentence to life in prison.

Smith, 37, is scheduled to die via an overdose of barbiturate on Jan. 7. The board will announce its decision on Dec. 11.

"I don't think Mr. Mahdi is the worst of the worst …," Columbus psychologist James Reardon, a former Toledo parole officer, told the board. "He's someone who made a really bad decision, and because of that decision, caused the death of another person, Mr. Darwish, and he regrets it very strongly. … He knows there's nothing he can do to change it."

Mr. Reardon interviewed Smith 13 years ago. Smith recently refused to meet with him again as the psychologist prepared to speak to the board on his behalf.

Darwish Darwish
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Smith's attorneys contend that he didn't mean to kill Mr. Darwish and that Smith fled after the robbery believing he had delivered a nonfatal wound to the merchant's arm. His bullet, however, struck an artery, causing Mr. Darwish to bleed to death.

As Mrs. Darwish testified, her younger daughter, Mona, wept. She was born three months after her father's death. Her older sister, Dolly, who was just shy of 1 year old when her father died, sat silently with them.

"What am I supposed to say about somebody I don't know?" Mrs. Darwish said Dolly asked when questioned what she'd tell the board about her father.

There's no doubt Smith pulled the trigger.

"His finger was on the trigger, but he only intended to rob the market," Assistant Public Defender Kimberly Rigby said.

At least one board member appeared to be skeptical of the argument that Smith's nervousness led him to accidentally pull the trigger of a gun that has never been recovered.

"This board hears that a lot," Chairman Cynthia Mausser said. "Guns go off all the time, and nobody's ever responsible for pulling the trigger."

Mr. Reardon countered, "If he really intended to kill Mr. Darwish, I believe he would have shot him again. … I also believe that if he was cold-blooded, he would have killed the witness."

Smith and his accomplice, Herbert Bryson, left the store without harming Osand (Senate) Tahboub, who was seated behind the counter in his friend's store when the robbery occurred. His testimony, along with that of Bryson and a third conspirator, Lamont Layson, helped to convict Smith.

Smith didn't appear to win points with the board by refusing a prison interview with one of its members. This led some members to question whether the problems cited by his current lawyers about the strategy of trial counsel in 1994 could instead be at least partly blamed on Smith's refusal to cooperate.

"We heard today a lot of speculation, hypotheses, assumptions, what he might think, what he could feel, [and] what he possibly intended, but he spoke not to the doctor these last 13 years and not to the board," Lucas County Prosecuting Attorney Julia Bates said. "We really do not know the answers to those questions. So what weight or credibility do we give to any of these hypotheses and possibilities?"

Smith could become the second person executed via Ohio's new single-drug method.

Mr. Strickland yesterday agreed with a unanimous parole board recommendation that no clemency should be granted Kenneth Biros, facing execution Tuesday for killing and dismembering a 22-year-old Warren-area woman in 1991.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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