A District Court judge said Thursday he was not about to rewrite the law so deputy killer Michael Astorga could avoid a possible death sentence.
Instead he denied a motion to dismiss that sentence, which means Astorga could face the death penalty depending on the outcome of a hearing next month.
Astorga was found guilty in June for killing Bernalillo County Deputy James McGrane Jr. during a traffic stop in 2006.
The district attorney's office is seeking the death penalty.
The repeal of the state death penalty did not include crimes committed before July 1, 2009, when the repeal went into effect.
Still Gary Mitchell, Astorga's attorney, asked a District Court judge to dismiss the possibility of the death penalty for his client saying it was unconstitutional and would violate Astorga's equal-protection rights.
Mitchell said since the state abolished capital punishment there should not be a question of when the crime was committed to determine if the death penalty should be a factor or not.
He said because of that a death sentence for his client is unconstitutional.
He also said it would violate equal-protection rights since Astorga is the only 1 of 3 men now eligible for the death sentence who was convicted after the death penalty was repealed.
Finally, the cop killer's attorney claimed that his client was unfairly singled out and that lawmakers and Gov. Bill Richardson did not make the repeal of capital punishment retroactive because they wanted Astorga to face a death sentence.
Judge Neil Candelaria said the law states murder cases committed before the ban went into effect are still eligible for the death sentence.
He then told Mitchell it was up to lawmakers to make laws retroactive. He said they chose not to and he was not about to rewrite laws and go against the Legislature.
The fallen deputy's family said it was another step toward justice.
"You know our son was given an instant death penalty," Rita McGrane said. "He was murdered. For me it's hard to hear the Astorga is afraid to die."
Astorga's attorney also asked for change of venue for the death penalty phase of the trial. The judge delayed a decision on that motion.
The death penalty phase for Astorga is scheduled for Jan. 10. A new jury will be selected to decide if he should be executed or face life in prison.
Source: Associated Press, December 2, 2010
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