NM Supreme Court Considers Constitutionality of State's Death Penalty!

Today in Santa Fe, the New Mexico Supreme Court will hear arguments for and against the state's death penalty, despite the fact that Governor Bill Richardson signed a death penalty repeal measure in March.

Currently two men, Timothy Allen and Robert Fry are on death row in New Mexico. Several others could face trials and death penalty hearings because their crimes were committed before the repeal becomes law in July.

The governor has said he would not commute the sentences of the state's two death row inmates and at least two district attorneys have delayed trails against defendants whom they plan to seek the death penalty, including accused sheriff's deputy killer Michael Paul Astorga and 44-year-old William Watson, who's accused in a murder for hire case.

Both sides will have only 30 minutes to argue their complex interlocutory arguments in front of the Supreme Court justices.

Astorga's defense attorney Gary Mitchell, who we interviewed here, last November, is using the Capital Jury Project report, as the center piece of his argument against the death penalty.

He tells us the report unequivocally shows certain jurors make up their minds to sentence a suspect to death even before the suspect's guilt is determined.

Before today's hearing, Mitchell told us:

In death penalty cases it is extremely difficult if not impossible to obtain the type of jury that the U.S. Supreme Court ordered in Furman vs Georiga (1972).

Mitchell added:

It's virtually impossible to get beyond the arbriarty and capricious nature that we find in death cases. It isn't anything bad to say about people. It's such an emotional issue. We have yet to devise a system in this country, so we can have a death penalty, and at the same time avoid people's emotions and feelings and the arbitrary and capricious nature of it.

Mitchell believes state legislators, pursuant to the 8th Amendment to the Constitution, are the primary arbiter of whether or not the death penalty is cruel and unusual punishment, and when the repealed capital punishment it should apply to everyone even if there crime occurred before the law takes affect.

District Attorney Kari Brandenburg told us she disagrees. Brandenburg says legislators replaced the death penalty with life sentences without the possibility of parole, but that Astoraga would not face that because his crime occurred three years ago. She's concerned the Astorga could get the old life sentence which is only 30 years.

In a telephone interview Brandenburg said:

We were the first jurisdiction to cross examine the sociologists who completed the Capital Jury Projected. We poked a lot of holes in the findings because they don't relate to New Mexico's different cultural values and orientation.

Brandenburg told 770KKOB:

If you're attacking jurors in a death penalty case you're really attacking the jury system as a whole.

It's unclear how long it will take for the Supreme Court to rule on the constitutional questions. Brandenburg says if they make a quick decision Astorga could face trial this year.