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In practice, capital punishment is reserved for “the worst of the worst,” that is, those crimes which most outrage the conscience of the community. Paradoxically, this makes for the capital system’s undoing, because it is these extreme and repellent crimes that provoke the highest emotions—anger, especially, even outrage—that in turn make rational deliberation problematic for investigators, prosecutors, judges, and juries. —Scott Turow, Ultimate Punishment [12] LIFE AND DEATH One day after the verdicts were delivered, the parties returned to court to consider the fate of the death-eligible defendants, al-’Owhali and Mohamed. There is no exact formula for balancing the aggravating and mitigating factors contributing to a crime, nor is there a mechanism to define who deserves to die. Yet, when sworn in, the jurors pledged that they could, in good conscience, vote for death. Without unanimous agreement in favor of capital punishment, the defendants would automatically be sentenced to life without the possibility of parole. “Jurors are called upon to make a unique individualized judgment about the appropriateness of sentencing another human being to death,” Judge Sand said solemnly. “This is not a mechanical process. Neither is the decision determined by raw numbers. . . . In short, what is called for in weighing the varying factors is not arithmetic, but an individual’s careful, considered, and mature judgment.” Being the ultimate punishment, death must be meted out with the ultimate care. Its appropriateness as a sanction begs the philosophical question as to the propriety of the state engaging in willful killing. “It’s chilling when a representative of the state rises and argues that a human being ought to be killed,” offered David Stern. “The government should be dispassionate, not angry. I find it unseemly.”1 --- “Justice is not done yet,” Pat Fitzgerald told the jury; “the only just punishment, the only punishment that does justice for the victims, the only punishment that fits the crime is the death penalty.” It is an awesome responsibility of individual conscience put upon jurors, the decision of whether someone will die. Indeed, the seemingly arbitrary way in which it has been applied is one argument against the death penalty. And in this case, with so many coconspirators, seeking death for some, while others evaded punishment altogether, raised a potential problem for the prosecution. Nothing made this more obvious than how the government agreed that sus- Life and Death 119 pects who had been taken into custody abroad—Mamdouh Mahmud Salim, the al Qaeda leader who headed the fatwa council, in Germany; Khalid al-Fawwaz, Ibrahim Eidarous, and Adel Abdel Bary, who were senior propagandists and facilitators, in the U.K.—would not be subject to the death penalty because both countries refused to extradite suspects to face possible execution. Thus, in order to get custody, the U.S. attorney had to pledge to seek only life imprisonment. Why, the defense put forth, should their clients be executed and others not, merely due to the circumstances of their capture, having absolutely nothing to do with their culpability? In K. K.’s case, his extradition from South Africa had been in violation of that country’s own laws, his attorneys argued as one of a dozen mitigating factors cited. “One of the ways you defend a death penalty case is to show remorse to the jury, but al-’Owhali was never going to let us admit guilt,” explained Cohn. “What I did was focus on how there were an awful lot of people similarly situated who were not getting death, which ended up being the biggest mitigating factor accepted by the jury. In my view, the jury found it important that Salim escaped death, even though he was no longer part of this trial, just because he had the good fortune to be apprehended in Germany. But, the fact they would find him guilty was written in stone. A lot of our effort was to limit the damage that would spill over from the guilt phase to the penalty phase.”2 It was, the defense contended, pure happenstance—and thus inherently unfair —that al-’Owhali and K. K. faced death while others did not. The prosecution would not get caught arguing the death penalty on comparative merit. Prosecutor Michael Garcia said simply, “Al-’Owhali is the rare exception, the criminal, the murderer, who deserves the ultimate penalty that is authorized by our law.” In order to pass a death sentence, the jury must find unanimously that at least one statutory factor has...

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