[See photo caption below]
NEW YORK (Reuters) - A Saudi man will spend the rest of his life in prison for helping carry out the 1998 bombing of the U.S. Embassy in Kenya after jurors disagreed on Tuesday about whether he should be executed, with some saying lethal injection was too humane.
The Manhattan federal jury said it ``did not unanimously find that the death sentence is appropriate'' for Mohamed Rashed Daoud al-'Owhali, 24, for his role in the Nairobi attack that killed 213 people. That means U.S. District Judge Leonard Sand must give al-'Owhali life without parole at his sentencing hearing set for Sept. 12.
In their answers to questions on the penalty verdict form, the seven women and five men on the panel said they agreed the government had proven beyond a reasonable doubt that the defendant intentionally killed the victims of the blast.
But they provided mitigating factors they said weighed against execution. In announcing the verdict, the jury forewoman said 10 of the panelists agreed that killing al-'Owhali would make him a martyr for ``al Qaeda's cause,'' referring to exiled Saudi dissident Osama bin Laden’s group that the government describes as a terrorist organization.
Nine felt that killing al-'Owhali would not alleviate the suffering of the victims or family members and four said that death by lethal injection was ``very humane and the defendant may not suffer.''
DISMAY AT VERDICT
Howard Kavaler, a State Department employee whose wife, Prabhi, was killed in the blast, was clearly angered by the verdict. He is now raising two young daughters alone.
``I must ... confess my extreme disappointment that the jury accepted some or all of the patently false and dishonest arguments advanced by the defense to save the life of a convicted mass murderer,'' he told reporters.
``Mr. al-Owhali, alone, whose life was deemed more precious than my wife and 212 other innocent people slaughtered in Nairobi, can be counted among the true apostates and infidels of this world,'' he said.
Kenyans also reacted with dismay.
``Even if he had been killed, that would not bring back my husband,'' said Leah Kahutu in Nairobi. ``But I would have been happier with him dead.''
Her husband, John, was a surveyor with an office in the building next door to the embassy, a building that collapsed after the blast. He left behind three children.
``Life imprisonment in the U.S. is just like living in luxury, not like life in prison here,'' Kahutu added.
Al-'Owhali was convicted with three others on May 29 of conspiring with bin Laden to kill Americans. Bin Laden was also indicted in the broad plot that included the 1998 twin bombings of the U.S. embassies in Nairobi and Dar es Salaam, Tanzania. The two explosions killed 224 people, including 12 Americans, and injured more than 4,000.
Khalfan Khamis Mohamed, 27, a Tanzanian convicted of carrying out the Dar es Salaam attack, also faces a possible death penalty. The penalty phase of his trial begins on June 19.
The cases against al-'Owhali and Mohamed mark the first time the U.S. government has sought the death penalty for terrorism committed against Americans in a foreign country.
Al-'Owhali faced a possible death sentence because of his direct role in the Nairobi attack. The defendant had confessed to the FBI that he rode in the truck used to bomb the embassy in Nairobi and threw grenades at security guards to get the vehicle closer. Although he expected to die in the blast, he survived and was treated at a hospital along with his victims.
``The government sought the death penalty because it concluded that it was the just punishment for this defendant and his crimes,'' Manhattan U.S. Attorney Mary Jo White said of al-'Owhali. ``But the imposition of the death penalty is uniquely a matter for the jury to decide and we respect their verdict.''
LAWYER DENIES MCVEIGH BACKLASH
David Baugh, one of the defendant's lawyers, was asked afterward if the concern by some jurors that lethal injection was too humane resulted from widespread publicity over Oklahoma City bomber Timothy McVeigh's execution on Monday. McVeigh died quietly by lethal injection without repenting for the federal building blast that killed 168 people.
``I don't believe it was a McVeigh backlash,'' he said.
Among other mitigating factors against the death penalty cited by the jury, five felt life imprisonment was greater punishment, and four said al-'Owhali was raised in a different culture with a different belief system.
Five jurors agreed with a factor offered by the defense on the verdict form that said the defendant was ``indoctrinated in conservative Muslim teachings which promoted jihad (holy war) and martyrdom during his early and formative years.''
The jury began deliberating late on June 5. The verdict was announced at a time when opponents of capital punishment in the United States and overseas have stepped up campaigns to end executions.
The last execution of a defendant convicted of a federal crime in New York was in 1954 when Gerhard Puff was put to death for the murder of an FBI agent. In 1953, Julius and Ethel Rosenberg were executed for espionage.
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PHOTO CAPTION

Mohamed Rashed Daoud al-'Owhali (L) will spend the rest of his life in prison for his role in the 1998 bombing of the U.S. embassy in Kenya after a jury said on June 12, 2001 that it failed to reach the unanimous decision required to sentence him to death. Al-'Owhali and Khalfan Khamis Mohamed are shown in court Feb. 5. (Jane Rosenberg/Reuters)
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