Friday, January 28, 2011
AG's Office Argues for Penalty Phase
By Scott Sandlin
Journal Staff Writer
There is no clear statewide or national consensus that the death penalty is out of whack with contemporary standards of decency even given the state's own repeal of capital punishment, the New Mexico Attorney General's Office says in the ongoing argument in the Michael Paul Astorga case.
Astorga attorney Gary Mitchell asked the New Mexico Supreme Court in December to halt the planned penalty phase trial for Astorga, convicted in June of the first-degree murder of Bernalillo County sheriff's Deputy James McGrane Jr. in 2006. The repeal became effective July 1, 2009, for crimes committed after that date.
Astorga's penalty phase trial was to have begun earlier this month, but the Supreme Court ordered a stay and asked the state to respond to Astorga's petition.
Mitchell argued various constitutional grounds. Prime among them was that New Mexico's 2009 repeal, New Jersey's death penalty repeal, and two U.S. Supreme Court rulings barring the death penalty for juveniles and people with mental retardation demonstrate an evolved standard of decency that make it cruel and unusual punishment to impose death.
The Illinois Legislature has also voted to repeal the death penalty in a bill awaiting the governor's signature.
In a response to Astorga's petition filed Wednesday, Assistant Attorney General Victoria Wilson urges the court to allow the penalty phase to move forward.
"The repeal of the death penalty by two states does not establish a national consensus against the death penalty when 36 states continue to authorize the death penalty for aggravated first-degree murder," the brief says. "Not only is two far short of a trend, it appears the two decisions are far from final."
Controversy over the repeal became fodder in the recent gubernatorial election, the Attorney General's Office notes, and it was the pro-death penalty candidate who won.
"The Legislature chose to hold first-degree murderers to the consequences of their crimes" as the punishment existed at the time the crime was committed, the brief says.
Prosecutors reject the idea that the Legislature impermissibly targeted a small group of people Astorga, and death row inmates Tim Allen and Robert Fry, who were convicted and sentenced before 2009.
The AG's Office says law enforcement agencies statewide are actively investigating "cold cases" involving unsolved murders potentially eligible for the death penalty, including the so-called West Mesa murders.
Mitchell said he hasn't yet seen a copy of the response. But he said no other state has approached repeal in the way New Mexico did.
"Once it's repealed, it's repealed. You don't say 'We're going to be civilized for these people and not for others.' The hyposcrisy of that does not fit into our morality, nor should it fit into our judicial system."