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          Front Page




Astorga Death Penalty Trial Can Proceed

By Scott Sandlin
Journal Staff Writer
          An Albuquerque trial judge wasn't swayed by arguments Thursday that Michael Paul Astorga is being unfairly and impermissibly singled out for a death penalty trial.
        State District Judge Neil Candelaria's ruling leaves the penalty phase jury trial for Astorga on track for its scheduled Jan. 11 start date.
        Astorga was convicted this summer of killing Bernalillo County sheriff's Deputy James McGrane Jr. in 2006.
        "I don't find anything about it unconstitutional," Candelaria said at the conclusion of arguments from defense attorney Gary Mitchell and District Attorney Kari Brandenburg. "It's the Legislature's prerogative to make a law prospective or retroactive."
        Candelaria said that, if he were to rule otherwise, "It would be writing new law, and it is not appropriate to do so."
        The death penalty repeal, signed by Gov. Bill Richardson last year, took effect in July 2009. It does not apply retroactively, however, so death row inmates Robert Fry of Farmington and Timothy Allen of Bloomfield still face execution. Likewise, the death penalty can be pursued for crimes that occurred before July 2009.
        Mitchell has said that lawmakers were able to negotiate repealing the death penalty by promising that prosecutors could still pursue it against Astorga.
        Mitchell, in a 30-page written memorandum and 45 minutes of oral argument, urged the court to recognize "evolving standards of decency" as reflected by the legislative repeal of the death penalty in 2009. That phrase has been invoked by the U.S. Supreme Court in death penalty decisions, including two in the past decade finding it unconstitutional to execute juveniles convicted of serious crimes or defendants with mental retardation.
        Mitchell said it is unconstitutional under both the New Mexico and U.S. constitutions to seek the death penalty for only one person convicted after the death penalty had been repealed.
        Two other men are on death row, but their convictions came before the death penalty repeal was signed into law, distinguishing their cases from Astorga's, he said.
        Brandenburg noted that, before its repeal, the state's capital sentencing statute had been held to be constitutional. It was lawful in New Mexico on March 22, 2006, the date Deputy McGrane was shot after pulling over a vehicle on the highway near Tijeras. Astorga was found guilty of that murder after a monthlong jury trial in June.
        Brandenburg challenged Mitchell's assertion that Astorga alone faces a death penalty trial. In addition to the two men currently on death row, she said police departments across the state "have active cold case units with numerous cases having the potential to be death penalty cases."
        John Hyde, a severely mentally ill man criminally committed to the state mental hospital after killing five people in 2005, including two police officers, could face the death penalty if he ever becomes competent enough to stand trial, she said.
        The families of Astorga and McGrane were on hand for the arguments Thursday — on opposite sides of the spectator benches — as they have been for previous proceedings.
        Candelaria adjourned the public proceeding to meet privately with lawyers about the increasing complexities of trying the high-profile case.
        Mitchell noted at one point in his argument that a Google search on his client's name turned up 319,000 hits — illustrating some of the difficulties in trying to impanel a jury with no preconceived ideas.
        The New Mexico Supreme Court on its own altered the procedure for capital cases with a 2009 rule that set up separate juries for the guilt/innocence phase and the penalty phase in capital cases.
        Astorga's is the first case in New Mexico, and possibly the first in the nation, in which such a process has been undertaken.
        Questionnaires are being readied to send to about 420 prospective jurors — the number attorneys will attempt to winnow down to a dozen jurors and alternates.
       





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