Jurors fell just one vote short of ordering the death penalty for convicted cop killer Michael Paul Astorga before concerns for their personal safety apparently swayed three others to change their votes to life in prison, District Attorney Kari Brandenburg said Monday.
The jury’s final 8-4 vote — with eight voting for the death penalty and four for life in prison — came after jurors asked a district judge for assurances about their safety after the trial, Brandenburg said, based on her conversation with a juror.
The Santa Fe jury on Friday failed to reach a unanimous verdict needed to sentence Astorga to death for the 2006 killing of Bernalillo County Sheriff’s Deputy James McGrane. As a result, Astorga will serve a judge’s sentence of life plus 13 1/2 years.
Brandenburg said she was contacted by a juror who said the 11-women, one-man jury had appeared close to approving the death penalty for Astorga, with only a single juror wavering.
“She thought they were going (for the) death penalty,” Brandenburg said of the juror who contacted her.
Then on Friday morning, the jury foreman sent a message to District Judge Pro Tem Neil Candelaria saying several jurors were concerned for their safety. They asked for assurances that their individual votes as jurors would remain anonymous, and they sought protection as they walked to their vehicles after the verdict.
Candelaria responded with a written message in which he assured jurors their safety was the court’s foremost concern. He also offered to speak privately with them about their concerns after the trial.
Some of the jurors apparently weren’t satisfied with Candelaria’s response, resulting in the subsequent 8-4 vote, Brandenburg said.
The jury returned its verdict that afternoon.
Brandenburg said she is not aware of any threats made against jurors, nor did she know why jurors may have perceived a threat to their safety.
“I thought that (Candelaria) was addressing their concerns, but apparently they didn’t feel like he was,” Brandenburg said.
Astorga’s attorney, Gary Mitchell of Ruidoso, asked Candelaria to order a retrial in the penalty phase, arguing that the jury was “deliberating under fear.” Candelaria rejected the request.
Astorga’s capital murder case received ample news coverage in the six years following his arrest in Mexico, just days after McGrane’s killing.
A Bernalillo County jury in 2010 convicted Astorga of murdering McGrane during a traffic stop in Tijeras Canyon. The state Supreme Court ordered that a separate jury hear the penalty phase to decide between death or life in prison for Astorga.
New Mexico repealed the death penalty in 2009, but prosecutors sought it in Astorga’s case because the crime was committed before the repeal.
Brandenburg said jurors often feel more apprehensive during high-profile cases. “Because of the publicity, everyone feels more vulnerable, more exposed.”
But she also said she couldn’t recall another case in which jurors have sent a question to the judge expressing concerns about their personal safety.
Security was unusually tight during the trial, with heavily armed officers, some in military-type fatigues, escorting Astorga at all times.
“I can see how someone would be intimidated by all that security in the courtroom,” she said.
Jurors also may have felt intimidated by the nature of Astorga’s crime, she said. “Just the fact that somebody would kill a cop — that’s a more brazen kind of criminal.”
A Las Cruces jury convicted Astorga earlier this year of second-degree murder in the killing of Candido Martinez in Albuquerque. He was being sought in connection with that crime at the time McGrane was killed.
Astorga faces up to 28 years for the Martinez conviction in addition to his sentence in McGrane’s killing.
— This article appeared on page A1 of the Albuquerque Journal