Sunday, April 05, 2009
Law Leaves Room for Executions
By Dan Boyd
Copyright © 2009 Albuquerque Journal
Journal Capitol Bureau
SANTA FE — New Mexico might have done away with the death penalty, but the possibility of future executions in the state hasn't been totally swept away.
In fact, the courtroom saga of those currently on death row or facing charges punishable by death could be played out for years to come.
New Mexico became the 15th state in the nation without the death penalty on March 18 when Gov. Bill Richardson signed a bill into law that replaces capital punishment with life in prison without the possibility of parole.
Richardson, however, said he wouldn't commute the sentences of the two men who are currently on death row — convicted murderers Robert Fry of Farmington and Timothy Allen of Bloomfield.
And prosecutors say that since the death penalty repeal applies only to crimes committed on or after July 1 — not those currently pending or others that might occur in the next three months — they see no reason to take the death penalty off the table until required to do so.
In Portales, prosecutors will appear before a judge this week to lay out the reasons they believe William "Billy Joe" Watson, 44, should be eligible for the death penalty.
Watson is charged with conspiring with members of the Aryan Brotherhood in a 2005 "murder for hire" case in which 71-year old Jimmy "Bo" Chunn was shot to death inside his home in Causey.
"We believe we have a duty to proceed forward as originally planned," said 9th Judicial District Attorney Matthew Chandler of Clovis, who prosecutes cases in Roosevelt and Curry counties "To take (the death penalty) away this late in the stage we feel would revictimize the family."
But backers of the effort to replace capital punishment with life in prison without the possibility of parole say executing an inmate or pursuing the death penalty after the state approved the repeal would send a contradictory message.
"I find it hard to believe there's support in the state for an execution after we've passed this bill," said Viki Elkey, executive director of the New Mexico Coalition to Repeal the Death Penalty.
Prosecutors say they're merely upholding the law as it currently stands.
District Attorney Kari Brandenburg of Albuquerque said her office will continue forward in a death penalty case against Michael Paul Astorga, who's accused of fatally shooting Bernalillo County sheriff's Deputy James McGrane Jr. during a 2006 traffic stop in Tijeras.
While the state will soon offer the punishment of life in prison without parole, Brandenburg noted that those issued a basic life sentence for crimes committed before July 1 are eligible for parole after serving 30 years.
"We don't have that now," Brandenburg said of life in prison without parole. "If we took away the death penalty ... he could be walking in 30 years."
Another prosecutor overseeing one of the state's four pending death penalty cases, 1st Judicial District Attorney Angela "Spence" Pacheco of Santa Fe, said her office won't be swayed by the repeal of the death penalty.
Pacheco, whose district includes Santa Fe, Rio Arriba and Los Alamos counties, declined further comment on the case against John La Bombard and Justin Romero, who are accused of taking Frank Segura into the Santa Fe National Forest and shooting him in the back of the head in a drug-related incident in 2008.
The prosecutor in Sandoval, Valencia and Cibola Counties, 13th Judicial District Attorney Lemuel Martinez of Grants, said that, while he doesn't have any death penalty cases under his jurisdiction, he wouldn't hesitate to seek capital punishment should a fitting crime take place before July 1.
"If one comes up, we will enforce what was the law at the time of the violation," Martinez said.
Richardson used similar logic on March 18 to explain why he's not commuting the sentences of Fry and Allen, calling their convictions and sentences "past legal issues."
Legal experts, however, say the will of the Legislature and the executive branch in repealing the death penalty is something prosecutors will have to take into consideration when deciding whether to seek the death penalty on cases that aren't already in motion.
University of New Mexico Law School professor James Ellis, who has argued in cases involving the death penalty and mentally disabled suspects, said Richardson's signing of the death penalty repeal will pose another obstacle in what are already costly cases.
"I would be surprised if there was something major that was pursued in the aftermath of such a landmark decision," said Ellis.
The situation faced by New Mexico is something of uncharted territory in modern American crime and punishment.
New Jersey is the only other state that has legislatively abolished the death penalty since the U.S. Supreme Court reinstated the death penalty in 1976. In New Jersey, however, a state appeals court had declared the procedures for carrying out an execution unconstitutional before the repeal was approved in 2007, effectively squashing any possibility of post-repeal executions.
Though the death penalty repeal only applies to cases committed on or after July 1, defense attorneys could argue that a death sentence doesn't jibe with the actions of the state's executive and legislative branches.
"I'm sure the defense would bring some type of challenge based on that," said 7th Judicial District Attorney Clint Wellborn of Socorro. "If I was in the defense, that's the argument I'd try to make."
Wellborn, the prosecutor in Socorro, Torrance, Catron and Sierra counties who recently completed his term as the president of the New Mexico District Attorneys Association, said it will fall to each prosecutor to decide whether the death penalty remains on the table.
New Mexico has only executed one inmate since 1960, convicted child-killer Terry Clark in 2001 by lethal injection.