NM high court: Astorga death penalty case to go on




State prosecutor Victoria Wilson prepares before going before the New Mexico Supreme Court in Santa Fe, N.M. Thursday Sept. 1, 2011 to argue in favor of the jurors considering the death penalty against Michael Astorga who was convicted of killing in 2006 a Bernalillo County sheriff's deputy. The state's high court ruled Thursday that a jury can consider the death penalty against Astorga despite the state's 2009 repeal of capital punishment. Photo: Russell Contreras / AP

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 MexicoSupreme Court ruled Thursday.

The state’s highest court issued the ruling after hearing arguments from a defense attorney for Michael Astorgaabout 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.



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