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.

ACLU settles lawsuit with Bernalillo County Sheriff's office

The lawsuit stems from searches deputies made during their massive manhunt for accused deputy killer Michael Paul Astorga.

In 2006, deputies surrounded Astorga’s father in law’s home with guns drawn and ordered family members to exit out of their home. After handcuffing each of them, the officers proceeded to search the residence.

But, The 10th Circuit Court ruled a families association with a suspected criminal is NOT sufficient probable cause to obtain a search warrant. The ACLU says the court’s decision and settlement sets clear limits for officials, who they say violated the constitution in their pursuit of Astorga.

The Tenth Circuit included this statement in their decision:

Although we are sympathetic to the urgency of the officers’ search for Astorga, we conclude that these actions violated the Fourth Amendment. Adhering to established Supreme Court precedent and the unanimous case law of this and other courts, we hold that a familial relationship is insufficiently particularized to justify invading an individual’s reasonable expectation of privacy.

The controversy surrounding this issue erupted in March of 2006 as law enforcement officials began a massive manhunt for Michael Astorga, who was suspected of shooting and killing Sheriff’s Deputy James McGrane, Jr. during a routine traffic stop. Astorga’s father-in-law, Rick Poolaw and his daughter, Chara Poolaw immediately began helping law enforcement efforts to apprehend Astorga after BCSO notified them he was a murder suspect.

At the time, Astorga was married to another daughter of Rick and Cindy Poolaw. Fearing for their daughter’s safety, the Poolaws offered up information that they thought might lead the police to Astorga. However, despite their unwavering cooperation and Rick Poolaw’s honorable 25 year service record as a State Police Officer, BCSO officers obtained a search warrant for the Poolaw residence based solely upon the fact that the Poolaw daughter, then Astorga’s wife, was known to stay at her parents’ house from time to time.

On the evening of March 24th, 2006, officers surrounded the Poolaw residence with guns drawn and ordered Rick, Cindy, and other family members to exit their house. After handcuffing each of them, the officers proceeded to search the Poolaw property and residences. Officers also confiscated several items belonging to the family. Four days later, BCSO officers seized Chara outside of her workplace in front of her colleagues and clients and held her at gunpoint while they searched her car. Despite her cooperation with BCSO, the officers performed this search without a warrant and only on the grounds that she was an in-law of Astorga.

From a news release:

We and the Poolaws have always been sympathetic to BCSO officers for the death of one of their own,” said ACLU-NM Co-Legal Director Jane Gagne. We also have high regard for the great risks that law enforcement officers face every day in the line of duty. But our sympathy and our regard do not diminish our determination and our duty to honor and protect the Constitution.

Rick, Cindy, and Chara Poolaw were deeply hurt by BCSO's actions against them, especially since Rick Poolaw is a respected retired State Police Officer, and they had helped BCSO in the search for Astorga. The Poolaws are gratified that the New Mexico Federal District Court and the Tenth Circuit Court of Appeals have confirmed that the Fourth Amendment retains its vitality even in times of tragedy.

ACLU-NM Managing Attorney George Bach, along with Co-Legal Directors Jane Gagne and Phil Davis, filed the suit on behalf of the plaintiffs.

Astoraga's Attorney Says Repeal Covers Current Capitol Cases

Michael Paul Astorga is charged with killing a Bernalillo County Sheriff's Deputy on March 21, 2006. His trial has been delayed after a motion to toss the death penalty was denied by District Judge Neil Candelaria.

Last week, Governor Bill Richardson signed a law repealing executions in New Mexico, but the law doesn't take effect until July 1, 2009. So, Bernalillo County District Attorney Kari Brandenburg has said she'd likely pursue a death penalty case against Astorga.

His lawyer Gary Mitchell told KRQE TV that the repeal should apply to his client.



The New Mexico Supreme Court ultimately may have to decide the issue.

State Road Is Renamed after Slain Sheriff's Deputy!

A Bernalillo County sheriff’s deputy killed in the line of duty is getting a new tribute.

Today, at a meeting in Santa Rosa, The NM Transportation Commission agreed to name State Road 337, in Tijreas , the James McGrane Highway.

Deputy McGrane was shot and killed while making a traffic stop there at the end of his watch on March 22, 2006.

McGrane's accused killer Michael Paul Astoraga is awaiting trial and is currently housed at the NM State Prison in Santa Fe on parole violations. Astoraga is also accused in two other earlier murders. He was arrested in Mexico City and extradited to New Mexico in April 2006 after his mug shot appeared on America's Most Wanted.

McGrane had served with the Bernalillo County Sheriff's Department for 3 years. He also worked in law enforcement for the NM State Police and the United State Postal Inspection Service.

The renaming process began a few years ago by residents in the East Mountains.

County Commissioner Michael Brasher and Sheriff Darren White backed the idea, but the process was delayed because road name change rules were being changed by the NM Transportation Commission.

"This is a fitting tribute to a dedicated law enforcement officer," said White. "It is recognition of the way McGrane lived his life, not by the way it was taken."

White says he doesn't have an exact date for the ribbon cutting ceremony, but said, "It won't be long. We've already been in touch with the Governor's office."

The Officer's Down Memorial Page has more information on McGrane.

The ABQJournal has more on the story, including how the 38-year old's family is celebrating the decision.