Jurors Questioning Astorga Guilty Verdict

The jury in the penalty phase of the Astorga trial went home Monday afternoon after submitting a series of questions that strongly suggest the possibility of a hung jury.

Jurors got the case just before noon after hearing closing arguments on the question of whether the state has proved aggravating circumstances required to impose the death penalty, and then began deliberating over pizza.

Convicted cop-killer Michael Paul Astorga, right, sits in court as a jury starts its deliberations on whether circumstances exist to consider sentencing Astorga to death. (Pat Vasquez-Cunningham/Journal)

Astorga was convicted by a jury in 2010 of the 2006 homicide of Bernalillo County Sheriff’s Deputy James McGrane Jr.

The Supreme Court ordered that a separate jury determine the penalty phase, which included a possible death sentence if aggravating circumstances are found. The two-jury procedure is untried anywhere else in the United States, according to the Death Penalty Information Center.

The court also determined that the new jury — despite the earlier jury’s guilty verdict — could consider whether they believed Astorga was guilty or innocent.

By 1:40 p.m. Monday, the first questions were sent out, Judge Neil Candelaria conferred with attorneys and sent back the answers.

Jurors wanted to know if they would be done if they unanimously found aggravating circumstances. The answer was no, because the stage is then set to decide whether mitigating circumstances outweigh factors calling for death.

The jury also asked whether Astorga would automatically get a life sentence if jurors didn’t find aggravating circumstances. The answer was “yes.”

By law, jurors must unanimously decide on aggravating circumstances, which includes findings that Astorga killed McGrane, that Astorga did so with intent and that McGrane was a peace officer who was performing his duties.

Jurors followed up throughout the afternoon with questions about what might happen on appeal if they made certain findings — they were told not to consider anything that might happen — and whether or not a presumption of innocence can be considered.

By 4:30 p.m., jurors had questions and a statement, revealing that “not all jurors” agree with the previous Albuquerque jury’s guilty verdict.

Candelaria proposed referring jurors to the jury findings of the original trial, which were already in evidence.

Astorga attorney Gary Mitchell pointed to the New Mexico Supreme Court ruling that said even the separate penalty phase jury can consider reasonable doubt of Astorga’s guilt. The defense at this trial has presented new evidence not available to the previous jury that questions whether Astorga was pulled over on the night McGrane was shot, twice, at close range.

Mitchell’s take on the evidence prompted District Attorney Kari Brandenburg to say at one point in her rebuttal that she wondered if she’d even been in the same courtroom as Mitchell.

Residual doubt “doesn’t mean they rethink the conviction,” Brandenburg told the judge in response to one question. “We are in uncharted waters. The procedure doesn’t make any sense.”

Candelaria’s responses to most questions sent jurors back to materials they already had, including the jury instructions he gave at the start of the day. He told them they must consider each of the four factors needed for the aggravating circumstance to be decided beyond a reasonable doubt.

The victim’s parents, Jim and Rita McGrane, who have been present for every hearing in the case, echoed frustration with the process after the jury was dismissed.

The McGranes said that even if one or two of the jurors don’t think Astorga is guilty, “It’s not for them to decide.”

“This should have been over two years ago,” James McGrane said. “The state Supreme Court, as liberal as it is, messed it up.”

In a pre-trial appeal, the Supreme Court refused to say the death penalty was unconstitutional for crimes committed after the effective date of the Legislature’s repeal of capital punishment. But it also ordered the separate juries for the innocence/guilt phase and the penalty phase of trial, apparently persuaded by academic research showing a predisposition to convict by “death-qualified” juries.

The net result is that many aspects of the second phase, in particular, are being tested for the first time.

“Obviously, it’s confounding for the lawyers,” Brandenburg said after court adjourned. “We don’t know how to make accommodations to the defendant that are also fair to the prosecution.”

Mitchell, asked if he thought the questions signal that the jury might not find aggravating circumstances, said, “I hope so. It sure sounds like it based on the questions.”
— This article appeared on page A1 of the Albuquerque Journal