UPDATED: State Supreme Court: Astorga Death Penalty Case To Go On
By Russell Contreras / The Associated Press on Thu, Sep 1, 2011
SANTA FE — A jury can consider the death penalty for an Albuquerque man convicted of murdering a Bernalillo County sheriff’s deputy in 2006 despite the state’s 2009 repeal of capital punishment, the New Mexico Supreme Court ruled Thursday.
The state’s highest court issued the ruling after hearing arguments from a defense attorney for Michael Astorga about whether the death penalty should even be considered since state lawmakers voted to repeal it.
Sentencing for Astorga was scheduled to begin Sept. 12. Jurors will have to decide whether to impose the death penalty or life in prison for Astorga, who was convicted in the 2006 killing of Deputy James McGrane Jr.
The state’s death penalty repeal took effect on July 1, 2009, and applied to crimes committed after that date. Astorga was convicted in the slaying nearly a year after the repeal took effect.
The Supreme Court ruled that defense attorney Gary Mitchell cannot call in experts or legislators to testify about the repeal during sentencing. But the high court said it would allow the trial judge to give the jury instructions and to be notified that lawmakers voted on the repeal.
“We are the only state that is facing this problem,” Mitchell told justices, referring to confusion about whether Astorga could be sentenced to death. “When the people change what the state can ask for, the state can no longer ask for it.”
Prosecutors said the repeal was irrelevant in the Astorga case.
“At some point, we have to recognize that we have to have a final judgment,” said Victoria Wilson, a prosecutor with Attorney General Gary King’s office. “A jury has already found (Astorga) guilty beyond a reasonable doubt.”
New Mexico Supreme Court justices did rule that defense attorneys could present new evidence during sentencing but couldn’t change their theory concerning Astorga’s innocence.
Mitchell had told justices that he had planned on introducing new DNA evidence and eyewitness testimony that would cast doubt on Astorga’s conviction.
“There’s no DNA evidence that puts him at the scene of the crime,” Mitchell told justices.
New Mexico has executed one person since 1960, child killer Terry Clark in 2001. Two men remain on death row, and then-Gov. Bill Richardson declined to commute their sentences after he signed the death penalty repeal.
Sept. 1, 2011 12:30 p.m. — State Supreme Court Rules in Astorga Death Penalty Case
SANTA FE — The New Mexico Supreme Court has ruled that attorneys for a man convicted of murdering a Bernalillo County sheriff’s deputy cannot call witnesses to talk about the state’s repeal of the death penalty during sentencing.
A jury is set to meet next month to decide whether to impose the death penalty on Michael Astorga for the 2006 killing of Deputy James McGrane Jr.
The high court heard arguments Thursday before ruling on which witnesses would be allowed to testify during Astorga’s sentencing.
The justices say the trial judge will be allowed to give jury instructions regarding the death penalty and that jurors can be informed that such a punishment can be imposed even though the death penalty was repealed in New Mexico.
State prosecutors say the repeal doesn’t matter since prosecutors said they would seek the death penalty in 2006.