The state Supreme Court will consider whether New Mexico's death penalty repeal should rule out a death sentence for an Albuquerque man convicted last year of killing a sheriff's deputy in 2006.
The court on Thursday scheduled a hearing for Sept. 1 on legal questions about the upcoming sentencing of Michael Astorga for the shooting death of Bernalillo County Deputy James McGrane Jr. during a traffic stop near Albuquerque.
The death penalty repeal took effect on July 1, 2009, and applied to crimes committed after that date. McGrane was killed in 2006. Astorga was convicted in the slaying nearly a year after the repeal took effect and his sentencing trial, which currently still includes the possibility of capital punishment, is to begin Sept. 12.
Astorga's lawyer, Gary Mitchell, contends the Legislature improperly tailored the repeal legislation so that his client could continue to face the possibility of being put to death.
The justices directed lawyers to submit arguments about the effect on Astorga's case of a state statute that says after a criminal penalty is reduced by a change in law, the amended penalty is to be applied to those not previously sentenced.
The hearing before the Supreme Court came at Mitchell's request, but he didn't raise questions about the statute that governs the interpretation of laws after they've been amended. That issue was brought up by the justices in their order.
Mitchell said he was pleased by the court's order.
"What it tells me is the Supreme Court has been looking at this issue. They did some research," he said in a telephone interview.
Mitchell had asked the justices to overturn a district court's decision limiting what evidence he could present to the sentencing jury. He wants the death penalty repeal to be considered as a mitigating factor by the jury in deciding whether to sentence his client to death. He also wants to present evidence of Astorga's innocence of the killing.
"The United States Supreme Court says once you evolve to a higher standard that's the standard that sets what constitutes cruel and unusual punishment. Once you set that, of course, you can't violate it anymore. The death penalty is now cruel and unusual punishment in New Mexico," said Mitchel. "So how can you have a death penalty?"
There's no guarantee the Supreme Court will rule on whether the death penalty can be imposed on Astorga.
In 2009 — after the repeal legislation was signed but before Astorga went to trial — the court heard arguments on whether it should put a stop to death penalty prosecutions. Astorga's lawyers argued then that New Mexico's capital punishment law should be declared unconstitutional. But several months later the court declined to rule on the constitutional challenge and Astorga's prosecution went ahead.
New Mexico has executed 1 person since 1960, child killer Terry Clark in 2001. There are 2 men on death row and Richardson declined to commute their sentences after then Gov. Bill Richardson signed the death penalty repeal.
Source: Associated Press, August 18, 2011
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