Defense attorney says it's too early to reinstate the death penalty

A prominent defense attorney, who has represented several murder clients facing the death penalty, including convicted sheriff killer Michael Paul Astorga, doesn’t want to see a repeal of New Mexico’s 2009 death penalty repeal.

Gary Mitchell told me this afternoon it’s too early to consider reversing course.

“We haven’t given it time to work,” Mitchell said. “We have a new governor, who never sought the death penalty when she was as a prosecutor, and now she wants to repeal the repeal. I don’t agree with that.”

But Roswell Republican Rep. Dennis Kintigh, isn't persuaded and today he proposed a ballot initiative measure which will put the issue in the public's hands.

Just last week, Gov. Susana Martinez called on the legislature to reinstate the death penalty, stating that “some crimes deserve the ultimate punishment."

Mitchell claims Martinez’ request is politically motivated and that she's “obligated to certain conservative right-wing groups who helped her get elected.”

Martinez made restoring the death penalty a prominent campaign issue last year, and on Tuesday she reiterated her pledge when she told legislators she believed juries should have the option to impose death.

“When a monster rapes and murders a child or a criminal kills a police officer, the death penalty should be an option for the jury,” Martinez said.

Rep. Dennis Kintigh
Before introducing today's legislation, Rep. Dennis Kintigh, R-Roswell told KOB TV he favors letting voters decide the issue and plans to sponsor a constitutional amendment.

"There's a lot of good people on both sides of the issue," Kintigh told the television station. "It's a fundamental issue of how we deal with this in society and I believe the best way to deal with these kinds of issues is to let the voters decide, give it to the voters."

Larry Larranaga

But other lawmakers don’t believe this is the year to consider the issue.

"We have very pressing issues during this legislative session," Rep. Larry Larranaga, R-Albuquerque said. "There's the budget, education reform, we've got job creation, we have the economy to look at."

The state only has two men currently on death row, and only executed one man since 1960. In 2001 Terry Clark received a legal injection after being convicted of raping and murdering a child.

When lawmakers dropped the death penalty two years ago they decided to replace it with life in prison without the possibility of parole, but allowed some then death qualified cases like Astoraga’s to continue. He was convicted last year, but the death sentence hearing has delayed while the state’s supreme court reviews petitions by Mitchell.

States Face Shortage of Key Lethal Injection Drug

While it may not become an issue in New Mexico, some states are running out of sodium thiopental, which is used to put prisoners to sleep before other drugs stop breathing and shut down the heart.

That’s because the drug’s manufacturer, Hospira Inc., decided to stop making the drug at its plant in Italy after that country decide to prohibit its export to countries who use it for capitol punishment.

Mitchell said case law would allow the state to change it’s form of executions without additional hearings, but the constitutionality of executions is still the priority.

He said some of the drugs currently used in lethal injections have caused inmates to suffer from painful deaths.

“It’s the main reason executions are not public nor video taped,” Mitchell said. “The gruesome nature of executions offend our human decency.”

Sodium Thiopental is used by 34 of the 35 states that use lethal injection to carry out the death penalty. The scarcity of sodium thiopental has led to execution delays in in at least two states, California and Oklahoma.

Michelle Lyons, a spokesperson for the Texas Department of Criminal Justice told the New York Times they have enough for two scheduled executions in Texas. Texas' supply is expected to expire in March.

“There currently are four executions scheduled in Texas — two in February, one in May and one in July,” said Michelle Lyons, director of public information at the Texas Department of Criminal Justice. At this time, we have enough sodium thiopental on hand to carry out the two executions scheduled in February.”

Last week's story in the NY Times reported an average of 55 executions have taken place annually over the last 10 years, with 46 last year and 52 in 2009, virtually all of them by lethal injection.

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.