Ohio executes inmate with new death penalty drug

By Andrew Welsh-Huggins

Associated Press

Published: Thursday, March 10 2011 9:20 p.m. MST

Johnnie Baston

Associated Press

LUCASVILLE, Ohio — Ohio on Thursday put to death a Toledo store owner's killer with the country's first use of the surgical sedative pentobarbital as a stand-alone execution drug.

Johnnie Baston was pronounced dead at 10:30 a.m., about 13 minutes after the 5 gram dose of the drug began flowing into his arms. About a minute into the execution, Baston appeared to gasp, then grimace and wince, but then was quickly still.

In a 5-minute final statement, Baston said the governor should have respected the opposition of his victim's family to the death penalty and commuted his sentence to life without parole. Baston also said he made a bad decision and said he hoped both his family and that of his victim could move on. He asked his brothers, both of whom were witnesses, to watch out for his teenage children as they grow up.

"I want you to tell them stories about me," Johnnie Baston said. "I want them to know the good things about me."

Baston, who grew tearful at times, also said he had hoped he wouldn't cry. "It's OK. It's OK," said his brother, Ron Baston. "You can cry."

A few minutes later, as the drugs began to flow, Ron Baston stood up and slammed his fist against a wall dividing the viewing area, the noise loud enough to draw the attention of warden Donald Morgan on the other side of the viewing glass. "Easy, sir," a prisons guard said.

Such a physical outburst is unprecedented in Ohio's forty-plus executions. "We'll clear his name," Richard Baston said as he comforted his brother. "We'll get justice for him. I promise."

Baston stayed up all night before the execution talking on the phone. Shortly after 7 a.m. he prayed with his daughter and his aunt, who adopted and raised him.

Ohio switched to pentobarbital as its execution drug after the company that made the drug it previously used, sodium thiopental, announced production was being discontinued. Oklahoma also uses pentobarbital, a barbiturate, but in combination with other drugs that paralyze inmates and stop their hearts.

States around the country have dwindling supplies of sodium thiopental, and several have looked for supplies overseas.

Johnnie Baston had said the change to pentobarbital didn't matter.

"New drug, old drug, it doesn't matter," he said last month in a pool interview conducted by the Columbus Dispatch. "The whole process should be eliminated."

Baston's execution also marked a change in Ohio's process, giving inmates speedier access to attorneys in case something goes wrong when needles are being inserted into them.

Ohio has had problems inserting needles in a handful of cases, including the botched 2009 execution of Romell Broom, who was sentenced to die for the rape and slaying of a teenage girl abducted in Cleveland as she walked home from a football game. The governor stopped the failed needle insertion procedure after two hours.

Broom complained that he was stuck with needles at least 18 times and suffered intense pain. He has sued, arguing a second attempt to put him to death would be unconstitutionally cruel.

Now, an attorney concerned about how an execution could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cell phone to contact courts or other officials about the problem, said Carlo LoParo, a spokesman for the Ohio Department of Rehabilitation and Correction.

There's a catch with the change: The state will still allow an inmate only three witnesses. For an inmate to be guaranteed fast access to a lawyer, he would have to give up one of his designated witnesses, usually a family member.

The change is consistent with federal court rulings that have limited challenges to Ohio's injection process to problems that crop up during individual executions, said Greg Meyers, trial division chief counsel at the Ohio public defender's office.

He said a lawyer who chooses to witness an execution now has immediate access to a phone if he or she believes something is going wrong. He said judges will have the final say on problems, which will limit abuse of the system.

Although the prisoner will now be just a few feet from witnesses as the needles are inserted, a curtain will be drawn and the procedure will still be shown on closed-circuit TVs in the witness viewing area. Using the TVs is meant to protect the anonymity of the executioners and to reduce the pressure they might feel having an audience watching them work, LoParo said.

Even before the change, Ohio had one of the most transparent execution procedures in the country. Several states, such as Missouri, Texas and Virginia, show nothing of the insertion procedure and allow witnesses to watch only as the lethal chemicals begin to flow. In Georgia, officials allow one reporter to watch the needle insertion process through a window.

Baston, 37, was sentenced to die for killing Chong-Hoon Mah, a South Korean immigrant who was shot in the back of the head. The 53-year-old victim's relatives oppose the death penalty and the execution. No members of the Mah family were present Thursday.

The victim was a journalist in South Korea before moving to Ohio and opening two retail stores in Toledo. He started life over as a manual laborer before opening his stores and rarely took a day off, his brother, Chonggi Mah, testified at the end of Baston's 1995 trial.

Baston has given differing accounts of the crime and has suggested he was present but didn't do the killing. But his attorneys say they don't dispute his conviction.

There was some last-minute confusion Thursday over allegations that Baston confessed during a lie-detector test arranged by his family on March 4.

LoParo said Baston had confessed, while Richard Baston, in an unusual pre-execution appearance before reporters about 40 minutes before the procedure, refuted the notion, calling it a miscommunication.

The Lucas County prosecutor's office acknowledges the victim's family's opposition to Baston's execution but points out the family testified strongly about its anguish and Baston's lack of remorse.

Republican Gov. John Kasich last week rejected Baston's plea for mercy. Baston asked for clemency based on the victim's family's opposition to capital punishment and his chaotic upbringing, with his lawyer saying he was abandoned as an infant and would wander the streets with his dog trying to find his mother when he was a boy.

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