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Thursday, December 27, 2007

Case May Test Death Penalty

By Scott Sandlin
Journal Staff Writer
    The New Mexico Supreme Court may use the case of suspected cop killer Michael Astorga to decide whether the state's death penalty law is constitutional.
    In fact, that ruling could come even before Astorga goes to trial for the shooting death of Bernalillo County Deputy James McGrane Jr. in Tijeras last year.
    District judges in different parts of the state have recently considered and come to different conclusions on the death penalty question, based on research about juries in capital cases.
    Now, with the issue raised again in the Astorga prosecution, both prosecution and defense agree it's time for it to be squarely addressed.
    Whatever the judge's ruling here, the question should go to the high court to decide before the case is ever tried, they say.
    District Judge Neil Candelaria, who denied a defense request to move the Astorga trial out of Bernalillo County, said at a hearing Dec. 19 that he isn't ready to sign off on an automatic pretrial appeal no matter what the parties have agreed to.
    But he decided the March dates he has set aside for Astorga's trial will instead be dedicated to a weeklong hearing on constitutional challenges to the capital murder statute.
    Astorga, 31, is accused of shooting McGrane in the head during a traffic stop in the East Mountains on March 22, 2006. He was arrested two weeks later after a massive manhunt.
    District Attorney Kari Brandenburg announced plans to pursue the death penalty in June 2006, soon after the case was indicted. She said her office was sending a message "that we are standing by our law enforcement officers."
    Defense attorney Gary Mitchell filed a motion asking for the state's death penalty sentencing law to be dismissed as unconstitutional.
    Mitchell's motion relies on research by the National Science Foundation-funded Capital Jury Project in a multiyear, multistate research of jurors in capital cases. The studies have found that problems with fairness begin at the outset of the trial process, because roughly half the capital-qualified jurors come to the courtroom predisposed toward the penalty before they've ever considered the defendant's guilt or innocence.
    In a capital case earlier this year, District Judge Tim Garcia of Santa Fe cited "significant statistical problems" with the existing capital sentencing law. He decided the best way to fix it would be to empanel one jury to determine guilt or innocence, and another to consider sentencing.
    Prosecutors then withdrew their notice of intent to seek the death penalty.
    A similar scenario played out before District Judge Freddy Romero of Roswell.
    But Judge Stephen Quinn of Portales denied a motion to dismiss based on similar arguments in the death case against Stanley Bedford, though he agreed to move the trial to Albuquerque.
    Bedford was convicted but sentenced to life imprisonment.
    District Judge Don Maddox of Lovington rejected a defense motion on the same grounds in a death case.
    Brandenburg said that so far, prosecutors haven't been willing to challenge the Capital Jury Project research, which "desperately needs to be done. Our office is willing."
    Jim Williams, a sociologist at New Mexico State University with expertise in tabulating and analyzing statistical data, has been hired as the prosecution expert.
    "Prosecutors have never wanted to get into it. This issue has never been resolved," Mitchell told Candelaria.
    Discussion of the death penalty challenge came at the conclusion of a hearing on Mitchell's request for a change of venue based on pretrial publicity.
    Mitchell submitted more than 100 headlines from stories appearing in the Albuquerque Journal and The Albuquerque Tribune about the case and said getting a neutral panel would require calling perhaps 1,000 prospective jurors.
    He also noted that Sheriff Darren White is running for Congress and that the rhetoric could be expected to benefit his campaign.
    Deputy District Attorney Troy Davis said Mitchell had failed to show publicity had caused any prejudice to Astorga.
    Candelaria agreed, but said the issue could be revisited during the jury selection process if there is evidence jurors have been prejudiced by the publicity.