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Convicted Tanzania embassy bomber Khalfan Khamis Mohamed could be sentenced to death or life in prison.

From Phil Hirschkorn
CNN New York bureau

NEW YORK (CNN) -- The next phase of the embassy bombings case will determine the sentence for convicted Tanzania embassy bomber Khalfan Khamis Mohamed -- either the death penalty or life in prison without the possibility of parole.

The same jury that found Mohamed guilty of participating in the Dar es Salaam embassy bombing and a worldwide conspiracy to kill Americans and destroy U.S. property will decide his sentence in proceedings that begin Tuesday.

This is the same panel of seven women and five men who decided that Kenya embassy bomber Mohamed al-'Owhali should be sentenced to life in prison instead of death by lethal injection, the specified execution method for condemned federal inmates.

"Lethal injection is very humane and the defendant will not suffer," four jurors said in the al-'Owhali verdict form.

"Life in prison is a greater punishment because his freedom is severely curtailed," they wrote.

CASE FILE Shattered Diplomacy: The U.S. Embassy Bombings Trial An in-depth special report on the trial of four men charged with the embassy bombings Trial reports | Timeline | Key Figures

DOCUMENTS Read al-'Owhali penalty phase closing arguments (June 5) (FindLaw) (PDF) Read al-'Owhali death penalty phase testimony (May 30-31) (FindLaw) (PDF) Documents in PDF format require Adobe Acrobat Reader for viewing.  CNN ACCESS Bomb victim's father: 'We got 'em, Kenny Ray'     GALLERY Images from the U.S. embassy bombing in Tanzania Images from the U.S. embassy bombing in Kenya

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Is there any reason to expect these jurors to change their views in the next round of deliberations?

For example, 10 jurors found that executing al-'Owhali would make him a martyr for his terrorist cause -- a view attorneys heard as early as January during voir dire. The woman seated as juror No. 2 told the court: "I don't know if imposing the death sentence would perhaps make them martyrs to the jihad, that they might gain greater glory in death than they would by continuing to live in prison."

Defense attorneys persuaded most jurors that al-'Owhali was motivated by sincere, if extreme, religious beliefs -- to fulfill jihad, or holy war, and to protect other Muslims, such as Iraqis, subjected to what he considered was injurious American treatment.

The fact that other conspirators, including those who have become cooperating government witnesses, will not be subject to the death penalty when they are prosecuted was another factor against an al-'Owhali death sentence, eight jurors found.

Although the jury did not find al-'Owhali less culpable than these men, Mohamed's lawyers will repeat the argument that this predetermined sentencing disparity is still a reason to oppose a Mohamed death penalty.

"Not only was Mr. Mohamed not a leader or organizer of this overarching conspiracy, but others who were, not only do they not face the death penalty, they do not even face a sentence of life in prison," said his attorney, David Ruhnke, recently in court.

Relatives of the 11 people killed in the Tanzania bombing and some of the 85 wounded survivors will testify in Mohamed's penalty phase. During al-'Owhali's proceeding, 26 victims who appeared to testify comprised almost the entire prosecution case. The jury found al-'Owhali did cause emotional, physical and financial loss, but most jurors felt that executing al-'Owhali would not necessarily alleviate the victims' suffering. Victims disagreed with that view.

"Unfortunately, an opportunity was missed to send an unambiguous message to the malcontents of the world intent on terrorizing the United States and its citizens abroad," said Howard Kavaler, a state department attorney whose wife, Prabhi, died in the Nairobi blast.

Prosecutors will argue that Mohamed, like al-'Owhali, showed no remorse for his actions. "Mohamed stated he would rather kill only Americans," said FBI agent Abigail Perkins about her interrogation of Mohamed.

"He was basically not sorry for the fact that Tanzanians were killed, that it was described as part of doing the job," Perkins said during trial testimony.

The government will have Mohamed's own words and additional evidence to show that Mohamed continues to pose a threat to society -- even behind bars, an argument the jury rejected regarding al-'Owhali.

Perkins told the jury that Mohamed said that if he hadn't been caught, "he would have continued his efforts to kill Americans, including being involved in bombings."

She added "that because he had been caught, he hoped that others carried on and that he would carry on if he could."

More damaging will be when the jury hears that Mohamed was an accomplice to the November 2000 jailhouse stabbing that left a corrections officer critically wounded. While alleged terrorist conspirator Mamdouh Salim is scheduled to go on trial for the attack next month, Mohamed was his cellmate at the time.

However, compared to al-'Owhali, there are a few points in Mohamed's favor entering the penalty phase:

Mohamed stands convicted of murdering 11 people while al-'Owhali, who was not sentenced to death, murdered 213.

Mohamed never met terrorist conspiracy leader Osama bin Laden or heard him speak. "If he bumped into him on the street and saw him somewhere in Tanzania, he wouldn't know who he was back in 1998," said attorney David Stern in the trial's opening statements. On the other hand, al-'Owhali met bin Laden and attended a May 1998 news conference in Khost, Afghanistan, where he repeated his intention to kill Americans.

Mohamed was found guilty of "aiding and abetting" the Tanzania bombing, while the jury found al-'Owhali "himself used an explosive" in carrying out the Kenya attack. While both men helped assemble the bomb trucks and rode in the passenger seats, only al-'Owhali rode with it all the way to the target. Mohamed exited early in the route to clean up the bomb house.

Given the similarities and differences between the two defendants, is it possible the same jurors who expressed ideological problems imposing a death sentence on al-'Owhali will do so against Mohamed? Is the required unanimous vote possible?

"It is something to have on your conscience," the man seated as juror No. 8 said during voir dire. "It is something that you can't take lightly."