Wednesday, February 2, 2011

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.


  1. I agree that the opinions of the victims or the victims' families have no place in the courtroom.

    Except when the victims opt for mercy.

    Then I think we should listen to them.

  2. Kind of a long walk, Jeff. Johnnie Baston was sentenced to death by some judge whose name isn't mentioned. Okay, the judge wants Baston killed. The rest of this amounts to a list of people whose objection to that killing will make a meaningful difference. Like the Governor of Ohio, for instance, who wants to be re-elected. Which you finally got around to at the end of the post.

    Hey, I read all the way to the end and I wasn't disappointed.

    My criticism is that you fail to emphasize the obvious (to me anyway) failure in the system: It isn't what we, the great unwashed, want. It isn't what the politicos think we want - when was the last time you found a politician who gave a tinker's damn about what We, the People wanted? It's all about what the politicos want - they want to be re-elected, and they are willing to kill to get there from here.

  3. I didn't talk about another set of problems with the Baston case because, for a change, I was trying not to get distracted from the point I wanted to make.

    But the Baston case was seriously fucked up, the courts basically acknowledged it, then said either that it didn't matter or that it wasn't true. It's actually a terrible case of systemic failure.

    Perhaps (probably) there'll be another post about that. Just wasn't this one.

  4. This execution is not about "revenge" or "satisfying our own blood lust". It is about retribution and being held accountable for your actions.

    To merit mercy, one must repent and ask for forgiveness. Johnnie Baston has done neither. He deserves the needle.

  5. You want to think it's about retribution, go for it. I think it's about vengence and blood lust. In fact, we're talking about the motivations of the jurors and judges and prosecutors and the folks who wrote the statute and all the people of Ohio who elected them and keep all those folks in office, and if you can see into the motives of all of them with certainty, good on you.

    Mercy, however, is a gift of grace from the executive. It can't be earned, only given freely. It may be that Baston doesn't deserve a break (although if, as he continues to claim, he's innocent, he might well deserve one). But denying him mercy isn't about him, it's about us (or the Parole Board or the Governor, anyway).

  6. I'm the eldest brother of Johnnie Baston, with background seven different areas of engineering two of them are process and quality. We have gone over this case from start to clemency hearing and I can tell that I totally agree with Mr. Jeff Gamso comments all initial parties from the police investigation, the initial lead attorney, to the three judges all cut corners to make this a open and shut case. By their actions the police investigation took the circumstantial testimonies along with his so called confession were the officers testify that they start and stopped the recording of his statement for not good reason where started he was there but didn’t commit the murder of Mr. Mah. The CSI of the actual shooting read right the Warren Commission of JFK no since at all!! Where the fatal shot enter in a downward angle in the back of the head which caused a right to left exit. The report stated he was standing not Keeling before the shot and the victim fell back wards and was found on his to pin this murder on my brother. It just not add up!! Since the evidence stated both Johnnie and Mr. Mah were about the same height from the evidence the shooter had to be taller!! When Johnnie was arrested when they found the gun could not have gun powder residue on his hands nor any of his clothing on his person nor the clothing in the bag.
    All the information that lie to me and my family about the three judge panel stating it is the only chance of not receiving the death penalty!! But once the three judge panel made a decision they put the responsibility on attorney such Mr.Gamso to make since of this mess but the major players that control the legal system to keep during business as usual. And killing is part of that business!!

  7. Ask yourselves this question is the legal system in the State of Ohio stand for Justice or Profit?
    Could the detectives, the prosecution, the defense and the judges have assumed this was just another open and shut case? Did the investigating detectives see my brother’s case as so-called done deal? Did the prosecution see my brother’s case as an opportunity to look tough on crime by pursuing a capital murder conviction? Did the Defense think Johnnie’s case was indefensible when they advise him to choose a three judge panel? Or maybe they were trying to save time and money, by avoiding a long drawn out trial? And the judges, did they allow the facts to be stretched and molded in a way that would garner a capital murder conviction regardless of whether it was warranted or not? To my knowledge there’s nothing indicating to me any serious investigation was ever initiated by the Toledo Police Department to locate Ray. Moreover, there was no physical evidence such as finger prints, blood, DNA or powder residue him or his belonging. There were no eyewitnesses that saw him directly entering or leaving the store. There were no ballistic tests done. The only solid evidence provided by the detectives as it relate to the aggravated murder in his case is evidence related to the gun and Johnnie’s statement. The prosecution accomplished it mission through the use of primarily circumstantial evidence and hearsay. So to kill some for admitting to just being there, but nothing not even the murder weapon can't tried to him at all from the lead investigator testiomony and the CSI report proves that the murder had to be must taller individual due to the downward angle of the bullet in a standing position. Of which Baston confession stated that but police refused to investigate that lead from their sworm statement.

  8. How about not placing a bullet into another human being's head. That would solve this entire issue. I'm neither a lawyer nor politician, but rather a citizen who believes everyone has control over their own behavior. As sad as it is that another life will be ended in this tragedy, Ohio is known for putting killers to death. He should have thought about that before he pulled the trigger.

  9. Well, we hadn't actually executed anyone at the time, but that's really not the point.

    My point, this post, isn't about Batson. Killing Chong Mah was a horrible act. Nobody disputes that. The question is no longer what Batson should do or should have done. It's what we should do.

    The death penalty is never about the people we're killing. It's always about us, the people who sanction (in both senses of the word) and carry it out or have it carried out in their names.

  10. What's disturbing about this case was how one of the court documents considered his future criminal activity since he was too young to have a criminal record to justify the death sentence. Also, the higher number of blacks in Lucas County sentenced to death row and Baston just turned 20 when the murder happened. And the family of the victim, the most affected by the heinous killing request for life in prison with out parole. And Baston death use to try out how the new drug would work to kill future death row inmates. Yes, this was very political and a lust for blood in those seeking politcal office or in office.

  11. The case for murder by the state gets progressively weaker. First it was deterrence; that has been proven false. Then it was "closure for the victim's family"; here, the family is opposed. How about "retribution"? But retribution is an entirely subjective judgment and assumes infallible fact-finders. Absent an undoctored video of the crime, human infallibility is not available, as we all should know by now. So what's left? The same reason a dog licks himself: because we can. Not the best basis for taking a life...

  12. Retributive justice (which is what they call it) is harder even than you suggest. Aside from ambiguity even in undoctored video, there's the question of what is appropriate. How hard does one hit back? Who decides? On what basis?

    As long as humans make the decisions, it's unavoidable that they'll be arbitrary and capricious, inconsistent, racist, classist, driven by politics - even when all of that is entirely unconscious and completely at odds with the nominal intentions of the decision-makers.

    It's that recognition that finally led Harry Blackmun to throw his hands up in despair and declare the death penalty unconstitutional.

    And that's if you think the death penalty is otherwise a good idea.