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New Mexico courts taking death penalty into their own hands
Facing the death penalty
Two men are on New Mexico's death row and five more could be on their way if juries see fit. They are:
Robert Fry: On death row for five years after his conviction for the 2000 stabbing and bludgeoning death of Betty Lee, a Shiprock mother of five. Fry also got three life sentences for three other murder convictions.
Timothy Allen: On death row for 12 years after his conviction for the 1994 strangulation death of teenager Sandra Phillips near Flora Vista.
Michael Paul Astorga: Awaiting trial in the 2006 shooting death of Bernalillo County sheriff's Deputy James McGrane Jr. in Tijeras.
Jose Garcia: Awaiting trial in the 2004 slayings of Cruse Rael, Deanna Sais and Jason Slade in the South Valley.
Reis Lopez, David Sanchez and Robert Young: Awaiting trial in the 1999 beating death of corrections officer Ralph Garcia at Guadalupe County Correctional Facility near Santa Rosa. The death penalty case has cost the state at least $2 million in defense attorney costs - the most expensive in state history.
Criteria for death penalty
New Mexico's capital crime law is written so that few murder cases meet the criteria to seek the death penalty. The criteria:
• The murder victim was a peace officer on duty.
• The murder was committed during an attempt to kidnap or rape the victim or have criminal sexual contact of a child victim.
• The murder was committed while attempting to escape from a penal institution.
• The murder was committed while incarcerated or on the premises of a penal institution.
• The murder victim was a corrections or criminal rehabilitation employee.
• The crime was a murder for hire.
• The victim was a witness to a crime or likely to become a witness to a crime and was killed to prevent the victim from reporting the crime or testifying about the crime.
Source: New Mexico penal code
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Convicted child killer Terry Clark was the last New Mexico prisoner put to death by the state.
That was 2001, and was the first execution in New Mexico in 41 years.
With just two men now on New Mexico's death row - both have appeals pending - Clark's death by lethal injection for the 1986 rape and murder of a 9-year-old Artesia girl will likely be the last for years to come.
Or possibly forever.
Those on both sides of the death penalty debate are no doubt keeping their eye on what the U.S. Supreme Court decides in a case involving two Kentucky death row inmates.
Attorneys for the inmates argue that the three-drug protocol for lethal injection - the method of choice in 35 states, including New Mexico - violates the Eighth Amendment prohibiting cruel and unusual punishment. They say a high risk exists that the drug combination can be administered incorrectly, leading to an agonizing death.
Should the high court agree with the Kentucky inmates, New Mexico could be forced to revisit its method of execution - if it decides to have a death penalty at all.
The death penalty issue is an emotional one, even though New Mexico rarely condemns its convicted killers to die.
Over the last 30 years, New Mexico prosecutors have pursued the death penalty in 210 cases. Of those, just 15 cases resulted in a death penalty sentence - 12 of which were overturned.
"The perception is this is not a killing state," said Santa Fe public defender Nancy Hewitt, steering committee co-chairwoman for the New Mexico Coalition to Repeal the Death Penalty.
Anti-death-penalty advocates in New Mexico have long argued to repeal the death penalty for a number of reasons. They argue that:
• The death penalty is morally wrong and against religious beliefs prevalent across the state.
• The state spends $3 million to $4 million each year for its death penalty system, even though only one execution has taken place in nearly 50 years.
• The death penalty is not an effective deterrent to crime.
• An innocent person could one day be executed.
Such was the case in 1974 when four members of a California motorcycle gang were convicted of killing University of New Mexico student William Velten and sentenced to death. After 22 months on death row, the men were freed when drifter Kerry Rodney Lee confessed to the killing.
Since 1999, state Rep. Gail Chasey has argued those points in the Legislature, introducing a bill that would abolish the death penalty in favor of a life sentence without parole.
The Albuquerque Democrat's bill has come close to passage. In 2005 and 2007, the bill carried through House - last year by a 41-28 margin. But both times, the bill failed in Senate committee. Opponents argued that the death penalty is a necessary tool for prosecutors and serves as a deterrent to crime.
Because this year's Legislature is the shorter, 30-day session undertaken on even-numbered years, Hewitt said it is unlikely lawmakers will be asked to weigh in again on the death penalty.
That's something of a blow to anti-death-penalty advocates, who had hoped New Mexico would become the first state to abolish the death penalty since the landmark U.S. Supreme Court decision in 1972 Furman v. Georgia, which essentially overturned all death penalty statutes and sent states scrambling to redraft their capital punishment laws.
New Jersey beat New Mexico to that distinction earlier this year.
"Our national coalition thought we'd be the first," Hewitt said. "We were all very optimistic this past session. We were seen as having a lot of support for repealing the death penalty."
Even without legislative help, the future of the death penalty in New Mexico could soon be in the hands of the state courts.
In May, state District Judge Tim Garcia in Santa Fe became the first judge in New Mexico to question the constitutionality of the state Capital Felony Sentencing Act.
The judge partially granted a motion to dismiss the death penalty in the murder cases against Jesus Aviles Dominguez and Daniel Good, both accused of the 2004 stomping death of a Santa Fe County jail inmate.
Garcia refused to dismiss the death penalty but agreed with public defenders that the only fair solution was to have two juries - one to determine guilt or innocence and the other to determine whether to impose the death penalty.
"The premature determination of the death penalty during the evidentiary (guilt) phase of trial is contrary to the clear and objective standards established by the New Mexico Capital Felony Sentencing Act and constitutes an arbitrary and capricious violation of the United States Constitution and the New Mexico Constitution," Garcia wrote in his ruling.
Prosecutors then withdrew their notice of intent to seek the death penalty against the men.
That same month, state District Judge Freddie Romero in Roswell also sided with public defenders who offered similar arguments in the murder case against Manuel Martinez, accused of fatally stabbing an elderly Hobbs couple.
Prosecutors in that case also dropped their pursuit of the death penalty after the ruling.
In both instances, public defenders based their argument on data from the Capital Jury Project, a multi-year, 14-state study funded by the National Science Foundation that used interviews from more than 1,200 jurors in 354 capital cases.
Among the study's findings was the issue that concerned both New Mexico judges: Nearly half of the jurors interviewed had already decided whether to impose the death penalty before a verdict was reached.
Judges in Portales and Lovington disagreed with their judicial counterparts and denied public defenders' arguments based on the study.
The study was also expected to be presented to another judge in June, but prosecutors pre-emptively dropped the death penalty.
The study could play an important role in March at a weeklong hearing that will determine whether prosecutors pursue the death penalty against Michael Paul Astorga, accused of killing Bernalillo County sheriff's Deputy James McGrane Jr. in March 2006.
The hearing before state District Judge Neil Candelaria in Albuquerque could be argued all the way to the state Supreme Court - finally deciding whether the death penalty lives in New Mexico.
At an Astorga hearing last month, Bernalillo County District Attorney Kari Brandenburg said prosecutors have been reluctant to challenge the validity of the Capital Jury Project data, but that her office is willing to do so and must do so before the Astorga trial goes forward.
Astorga's attorney, Gary Mitchell, arguably the state's most vocal anti-death-penalty advocate, also said it is time to resolve the issue of New Mexico's death penalty.
"It is wrong as a matter of law," Mitchell wrote of the death penalty in one of 40 pretrial motions on Astorga's behalf.
"It is wrong," he continued, "as a matter of principle. It is wrong as of matter of the majority of religious views in this state. It is wrong based on the refusal of jurors to give it. It is wrong based upon principle of humanity and a more learned civilization. It is wrong because so few hold the power to call for and begin the procedure of death. It is wrong as a matter of economics. It is wrong because it is cowardly."
