Ohio plans 1st use of new solo execution drug

[March 10, 2011]  LUCASVILLE, Ohio (AP) -- A condemned killer to be put to death Thursday with the country's first use of the surgical sedative pentobarbital spent the night before his execution awake and talking on the phone.

Johnnie Baston also spent part of Thursday morning praying with his daughter, Asziah (ah-ZEYE'-ah) Baston and his adopted mother, Tommie Nell Davis.

Prisons spokesman Carlo LoParo says Baston has showered and also met with his lawyers and a minister.

The 37-year-old Baston was sentenced to die for killing Chong-Hoon Mah, a South Korean immigrant who was shot in the back of the head.

Ohio switched to pentobarbital after supplies of the drug previously used ran short. Oklahoma also uses pentobarbital but combines it with two other drugs.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

A man convicted of killing a storeowner was to be put to death Thursday with the country's first use of the surgical sedative pentobarbital as a stand-alone execution drug.

The execution of death row inmate Johnnie Baston also would mark a move to make the process more public and give 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 is going could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cellphone 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.

A federal judge has already ruled that an inmate's constitutional rights aren't violated by having to substitute a witness for an attorney.

Baston's brothers and his public defender, Rob Lowe, were scheduled to witness his execution Thursday.

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.

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.

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.

Prosecutors also say Baston has refused to accept responsibility.

Republican Gov. John Kasich last week rejected Baston's plea for mercy, and Baston has no pending appeals. 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.

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

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

[Associated Press; By ANDREW WELSH-HUGGINS]

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