The Governor of Ohio is not God’s agent on earth. He is our agent.

From: Gamso – For the Defense Blog

Friday, March 4, 2011

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.