Feel Better Now?

They say Johnnie Baston confessed on Friday.

So we can all rest easy.

But you know, confession or not (and there's at least some dispute), factual guilt or not? That's a distraction.

The choice of drug, switching from thiopental to pentobarbital?  That's a distraction.

Marginally greater access to a lawyer during the execution?  That's a distraction.

We talk about those things, I talk about those things, because they're relevant to the individual cases,  because they move some people, because they point to intractable problems and because there's a legitimate interest and concern with how we go about it.

But they're distractions.

On the listserv of the National Association of Criminal Defense Lawyers, and in the wake of what happened in Illinois yesterday, there's been a whole lot of fussing about how it is or isn't possible to believe in the death penalty but still defend the capitally accused.  It's a distraction.

We let those other things distract us. This is about murder. 

Shortly before this morning's killing, Tim Young, Ohio Public Defender, said this.

Today Ohio will kill Johnnie Baston.  Johnnie will be executed using pentobarbital, a first in Ohio.  He will also have unprecedented access to his attorneys during the process.  There are those who look to Ohio as setting a new standard for ‘humane executions’ -  what a strange and inherently contradictory term.  But what is there to look to here in Ohio?  That we are only second to Texas in the number of executions?  That we only use one drug instead of three?  That the condemned man can talk to his lawyer?  All this talk about the process is but a diversion from the fact that Ohio is still going to kill Johnnie Baston today.  Instead of looking to Ohio as an example of anything to do with the death penalty, we should look to  Illinois, New Mexico, and the other states that have repealed the death penalty.  For it is those states that understand that to be humane there cannot be executions.

He's right. 

This is about murder.  Plain and simple.  And it's not about the murder of Chong Mah.  That is, sadly, over and done.  We cannot bring him back.  We cannot undo the horror, the pain, the loss. Adding a murder does not change that.

And it is murder.  Aggravated murder, in fact.  I've quoted this section of the Ohio Revised Code before.

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

This morning, a team of state employees, acting at the specific direction of judges, justices, and the Governor of the State of Ohio, all pretending to be acting in our interest, caused the death of Johnnie Baston.  Purposely.  And with  prior calculation and design.

So we can all rest easy.

Or not.

Tears Come Early

They won't be killing him for another few days, not until Thursday next week.

I'm not sure why this one is hitting me so hard.  They're all tough, of course.  Especially the ones I worked on.  But this is worst than most.

Maybe it's because it's so clearly wrong.

So a bit more background, maybe.

Johnnie Baston was sentenced to die by a three-judge panel that exhibited bias and prejudice against him at sentencing.  That's basic error.  So basic that it should get an automatic new sentencing.  But the court of appeals, while acknowledging (though not in so many words) that the panel was biased, said that it's mandated independent reweighing of the sentencing issues would cure the problem.

That's wrong.  Fundamentally, legally wrong.

Then we went to the Supreme Court.  They said (again not in so many words) that they were legally obligated to agree that the three-judge panel was biased and prejudiced.  But because the panel wasn't, it didn't matter.

Are you deeply enough in fantasy yet?

Baston said from the time he was arrested that he didn't shoot Chong Mah.  Some guy named "Ray" did the killing, Baston says.  It's possible that one of the witnesses, a passer-by outside the wig shop, might have seen this Ray.  But the panel misrepresented his testimony so that it seemed the witness saw Baston, which the witness was clear he did not.  There's other evidence that might be exculpatory.  Or maybe not.  But it doesn't matter much now.

The victim's family doesn't want Baston killed.  I made a couple of efforts (here and here) last month to explain why their feelings should, at this stage, control.  I don't know that I did a very good job of it, so let me try it much more simply now.

Clemency (which is what we're talking about) isn't about the law.  The law controls the procedures to be followed - the Parole Board must make a recommendation to the governor, after which the governor can do whatever he wants - but the law says nothing about how the decision to grant or deny clemency should be made.  That's because clemency is a vestige of the divine right of kings.  The king, you see, was God's agent in these matters, granting mercy whenever he wished.  Not because the recipient deserved it but because mercy is a gift to be bestowed at will.

The Governor of Ohio is not God's agent on earth.  He is our agent.  So executive clemency isn't about what God would do but what we would.   Here and now, as in medieval England, clemency isn't (or at least shouldn't be) about the recipient of the gift.  It's about the giver.  About us.

We have been asked to spare him as a gesture to the family of the victim.  Surely we can do that.  Because we can be merciful even to those who themselves denied mercy.

Because we are better than that.

Or maybe not.

This afternoon, without comment, Governor Kasich said we're not.  He denied clemency to Johnnie Baston.

Next Thursday, agents of the State of Ohio will kill him.

Not because he deserves to die.

But because we aren't decent enough to let him live.

Baston, according to the prosecutor, the three-judge panel, the appellate courts, and the Parole Board, chose to murder Chong Mah.  He didn't have to.  He chose to.

The panel, the appellate courts, the Parole Board, and now the Governor all chose to murder Johnnie Baston.  They didn't have to.  They chose to.  On our behalf.

Only Baston (if it was he who killed Chong Mah) and the Governor made the decisions alone.  

Only they have nobody to whom the buck can be passed.

Baston still says he didn't kill anyone.

We know for sure that Kasich is a killer. 

Divine Wrongs

Nine days ago I asked why we should kill Johnnie Baston.

Today the Parole Board offered an answer.

Baston Clemency

When you get right down to it, all that is little more than 

Well, why not?

I suppose that's not entirely fair.  It makes their decision sound cavalier and off the cuff.  It's not that.  It's just dismissive.  The Board offers four reasons to kill him.

1. Mitigation doesn't outweigh aggravation.
2. Baston still says he didn't personally kill Chong Mah though he was there and participating in the robbery.
3. "While many members of Mr. Mah's family favor a commutation to life without parole, Mr. Baston's  lack of accepting responsibility, criminal history, and the severity of the execution style killing of Mr. Chong Mah outweigh their personal opinions regarding the death penalty and their wishes as to the sentence imposed in this case.
4. The conviction and sentence have been affirmed by the courts and there doesn't seem to be anything legally wrong with those decisions.

Let's take those reasons in turn.

Mitigation doesn't outweigh aggravation

That's close to a given.  The way you get onto death row in Ohio is for the jury and trial judge (or as in Baston's case three-judge panel) to make the formal finding that aggravation outweighs mitigation beyond a reasonable doubt.  The way you stay there is for the state courts on direct appeal to independently (that is, without any deference to the jury's or trial judge's [or panel's] decision) make the same finding.  In cases like Baston's where the crime occurred before January 1, 1995, that finding on appeal will have to be made by a three-judge panel of the court of appeals and then, separately, by the seven Justices of the Ohio Supreme Court.  (In never cases, the court of appeals doesn't get to make that finding, but the supremes still have to.)

So what are you going to present now that will change that?  The crime is likely the crime.  There may well be more mitigating evidence than was presented at trial, but if there is, it's almost certainly been reviewed by various courts which have said they don't think it's worth squat.

Which means, when you get right down to it, the claim is that the trial court reached a legally defensible conclusion.  And the fact that he's shown over the 15 or so years he's been on death row that he's capable of living in prison without being any trouble to anyone is irrelevant because we don't care about things that weigh on the side of mitigation.

Baston still says he wasn't the killer

He claims he didn't kill Chong Mah. He's always claimed that.

From the Board's perspective, that means he doesn't accept responsibility.  And really, They think it's important for him to acknowledge that he did it because the alternative is really unlikely and hell, he's got to admit sometime he's an evil lying SOB if he wants them to think he's a really good guy - which is something they don't much care about anyway.

The victim's family doesn't want him killed

Which isn't that big a deal from the Board's point of view.  Maybe they're buying into what Julie Bates, the elected Lucas County Prosecutor told them:  It's an important thing for everyone to consider always, but the law is the only thing that matters.  Or maybe they're buying what Steve Maher (they misspell his name) from the Attorney General's office said: Let one guy live because the victim's family doesn't want him killed and you have to let them all live under those circumstances.  And then where would we be?  Where, indeed?

The Courts didn't reverse the conviction or sentence.

Of course, if they had, the Board wouldn't be doing a clemency review.

Here's what it really is, and why the Board is so fundamentally wrong.

Clemency is about mercy, not law.  Law authorizes, but mercy is a gift. Here's the first paragraph of an essay by Sister Helen Prejean from 2005.  She was writing about the death penalty and clemency and George W. Bush as Governor of Texas and about Karla Faye Tucker whose murder by Texas Bush approved.

In the twenty-first century, a state governor represents the last vestige of the “divine right of kings,” because he has absolute power over life and death—especially when such power is entrusted to politicians motivated more by expediency than by conscience. Faced with a pending execution, no governor wants to appear callous about human life. So governors appoint pardons boards and meet with legal counselors, who take the political heat for controversial cases. All governors claim to agonize over death penalty decisions. All claim to scrutinize every possible angle of the cases of condemned persons facing execution under their watch. 

What follows is a demonstration of the emptiness of those gubernatorial claims. But what I'm focusing on here (we can still fantasize that John Kasich will take his clemency power seriously and use it generously) is that first clause and in particular the described roll of the governor in the process.  His power is

the last vestige of the "divine right of kings."

The idea behind divine right was that God actually chose who would be king and that the king acted as god's surrogate within the kingdom.  When the King (and it's appropriate to capitalize that here) chose to grant clemency, it was really God's gift transferred through his (God was always understood to be male) agent, the King.

And, importantly, God's gift of mercy on earth (like mercy in the afterlife at least according to some doctrine) cannot be earned.  After all, if it were earned, it would be pay or reward, not a gift at all.

OK.  I understand that governors are not, in fact, surrogates for god and their acts (and the acts of their Parole Boards) are not divinely authorized.  But the idea remains.  In fact, the power of executive clemency is, like the idea of governmental immunity, a remnant of the divine right of kings and the idea of the king and kingdom as divinely ordained.

And until very recently, executive clemency was understood to be about mercy rather than dessert.  We've lost that not because we've just figured out that our chief executives aren't in fact agents of a divinity simply carrying out his will (or whims).  We've lost it because politics trumps all.

And so the Parole Board unanimously says that Johnnie Baston should be killed because he hasn't presented them with a legally compelling reason to grant him life.

We are, says the Parole Board, just one more court making sure that none of the others screwed up too badly.  And the Governor, just another judge.  It's all about the law.  And if the law doesn't require life, then why not kill him?

But, but, but (I sputter), because at this point the wrong question.  The right question is what mercy begs, not what law requires.

The answer to that is surely that Johnnie Baston should be granted life.

Why, Exactly, Should We Kill Johnnie Baston?

Chong Mah, an immigrant from South Korea, owned and operated Continental Wigs-n-Things in downtown Toledo.  On March 21, 1994, the store was robbed and he was shot and killed.  Johnnie Baston is on death row for that killing.  Ohio intends to murder Baston on March 10.

Baston said then, and according to press reports says now, that he didn't do it.  He was there, but he wasn't the shooter.  Maybe.  I don't pretend to know and, in any case, it's not what interests me now.

(I represented Baston on direct appeal of his conviction and death sentence.  There are, in fact, a number of truly things about the case that infuriate me.  Those things have nothing to do with whether he in fact shot Chong Mah, nor are they relevant to what this post will be about if I ever get done with the digression and get to the point.  OK, I'll go there now.)

Chong Mah was, by all accounts, a decent, honest, hard working, truly wonderful man.  Perhaps that's why it's so damn poignant that we're getting all geared up to kill Baston.  See, the Mah family never wanted Baston to be killed.  They told the prosecutors at the time of the trial.  Now they're telling the Parole Board and, through the Board, Governor Kasich. 

Jim Provance, has the story in Today's Toledo Blade.

The family of Johnnie Baston's victim doesn't want him executed, so neither should the state of Ohio, Baston's attorneys will argue Thursday in hopes of convincing Gov. John Kasich to show him mercy.

That's to the point.  Even more is an affidavit from Peter Mah, son of the murdered man.

I was opposed to Mr. Baston receiving a death sentence at the time of his trial. . . . My family and I are opposed to Mr. Baston being executed.

As I said, the prosecutors knew. 

Two attorneys working as assistant Lucas County prosecutors at the time of the trial filed affidavits noting that the family told them that they would prefer to see Baston spend the rest of his life behind bars without the possibility of parole. That sentencing option wasn't available to the three-judge panel that presided over his trial.

It's true.  Ohio didn't have LWOP in 1994, though it does now.  More to the point, Kasich can commute the death sentence to LWOP.  Ah, but he shouldn't says the elected prosecutor, Julie Bates (joined by Ohio's new Attorney General, Mike DeWine.

A response to the clemency petition filed this week by Lucas County Prosecutor Julia Bates and Attorney General Mike DeWine's office said Mr. Baston continued to refuse to accept responsibility for Mr. Mah's murder during his interview with the board last week.



"In short, nothing has changed," it reads. "Mr. Mah's family maintains an opposition to a death sentence, and Baston continues to refuse to accept responsibility or express remorse. These factors were known to the three-judge panel who sentenced Baston to death more than 15 years ago and do not present viable grounds for a recommendation for clemency today."

I'm about to explain that among the numerous reasons we shouldn't kill Johnnie Baston is the only one I'm talking about here:  Chong Mah's family doesn't want now, and didn't want then, to have him killed.  And that here, in this context, that trumps everything else.  And I need to be very clear because I'm setting myself up for an accusation of hypocrisy and intellectual dishonesty.

See, I've said repeatedly that the victims of criminal acts (or the surviving friends/family/loved ones of those victims) have no proper role in the criminal justice system except sometimes as fact witness.  Crimes are violations of the social order, acts against the state which is, properly, the only victim.  Personal loss is properly (albeit often unsatisfactorally) addressed in civil law, through tort actions.  I'm particularly incensed by the prosecutors who see themselves as agents of those victims, who believe their job is to act on their behalf and to use the criminal law to exact vengeance in their names.

And yet, I'm saying that the family's views should count here.  A lot.

There's a couple of points. 

First, we're not talking about trial now.  We're talking about pure mercy, which is what the Gov can offer.  That's not properly part of the criminal justice system any more than are journalists whose independent reporting turns up compelling evidence of innocence.  The proper question for the Gov isn't whether the courts got it right (though that's not irrelevant since the Gov can, of course, fix judicial mistakes, too).  The question for the Gov is whether this or that person, Johnnie Baston in this case, should receive mercy.  

Not whether he deserves it.  Whether he should receive it.  Historically, the answer to that question was mostly yes.  In recent years, it's mostly been no.  That's not a difference in the condemned.  If mercy isn't about what's deserved, it doesn't matter much who they are.  It's a difference in politics.  Clemency has become a proxy for tough-on-crime.  Commute death sentences when you're not pretty sure the guy is innocent, and you're a wimp.  (There's some evidence that's changing, but it's far from clear, and any change is very slow.)

Anyhow, if you're a governor trying to figure out whether to exercise the extraordinary power of clemency it seems reasonable to consider the seemingly unusual voice saying "Yes."

Second, and really more important, is the nature of the death penalty.  

Robert Morganthau, long time District Attorney of New York County (that's Manhattan), put it plainly.

The only honest justification for the death penalty is vengeance.

But vengeance for whom?  Not for me?  Not meaningfully for the state.

Here's what it comes down to.  When the prosecutor says, this person should be killed because he killed someone, that's not a legal determination.  It's a moral one.  It's a claim that vengeance is appropriate in this case.  And surely the active, "please don't" from the survivors of the murdered person is a relevant consideration.  Why?  Because it undercuts the purported moral justification and dishonors the person killed.

Don't kill for me has special resonance when it's not some bunch of abolitionists making a generic statement but the family of the murdered person.

All of which gets to the title I gave this post.

Why, exactly, should we kill Johnnie Baston?

To teach him a lesson?  Nah.  If there's a lesson for him and he hasn't learned it by now, he won't have mastered it by March, though another few decades in prison might get it through to him.

To teach others? Nah.  The reality is that the people who are prone to commit murder either act on the spur of the moment, without any thought of consequence, or are quite sure they'll never get caught.  I suppose some few people here or there are deterred by the theoretical possibility of execution, just as some few commit murder in order to be executed, so that the state will help them commit suicide.  If we're out to prevent killing, there are far more efficient and effective things we could do with the resources we've been wasting on seeing Baston killed.

No, the reason we want to kill Johnnie Baston is to take revenge on him for what he was convicted of doing to Chong Mah.  But if Mah wouldn't want it, and if his family wouldn't want it, then what we're doing is no more than satisfying our own blood lust.

That's the real reason, of course.  It makes us (not me, and maybe not you, but the generic "us" that is the people of Ohio who are paying attention and maybe do or don't feel that way) feel good to kill.  We like the blood.  We feel righteous about it.  We pretend otherwise, of course.  Maybe we (that's the collective "we" again) don't really feel that way.  But the politicians think we do.  They think we want them to kill.  And they want to be re-elected.

So it's kill and kill and kill.

Tit for tat.

Someone once told me that two wrongs don't make a right.

Why should we kill Johnnie Baston?

No reason on earth.

Or in the heavens.