Friday, May 2, 2008

AG May Scuttle Death Penalty Appeal

By Joline Gutierrez Krueger
Journal Staff Writer
The much anticipated showdown over the death penalty at the state Supreme Court may be over before it begins.
The Attorney General's Office is expected to file its response early next week opposing an appeal sought by defense attorneys of state District Judge Neil Candelaria's decision to keep the death penalty in play in the case against Michael Paul Astorga, who is accused of killing a deputy.
Both defense attorneys and prosecutors said they had hoped that a decision by the state's highest court before Astorga went to trial, rather than afterward, could help define how better to proceed with the case and with death penalty cases in the future.
"We are saying, let's figure out what's right and what's wrong and save the taxpayers a lot of money and the victims' families a lot of grief now rather than go through a whole trial only to have to do it again," Bernalillo County District Attorney Kari Brandenburg said.
Her office is prosecuting Astorga for the March 2006 shooting death of Bernalillo County sheriff's Deputy James McGrane Jr. during a traffic stop in the East Mountains.
But Steven Suttle, special counsel with the Attorney General's Office, said the appeal is premature.
The grounds for the appeal, he said, do not meet the necessary criteria for such an appeal before the case is resolved because it is not "dispositive" of the case, meaning that a ruling one way or the other will not decide it.
"Regardless of whether the Supreme Court affirms Judge Candelaria's decision or overrules it, the case is not going to go away," Suttle said. "Our position is an interlocutory appeal is inappropriate at this time."
Suttle also said similar arguments could be made during the automatic appeal that would be generated should Astorga be convicted and sentenced to death.
The state Supreme Court has the final say on whether to hear the appeal, but attorneys on both sides of the issue say they are concerned that the AG's stance could thwart their hopes of obtaining a definitive decision from the state's highest court on the complexities of the death penalty.
"I respect what the Attorney General's Office believes it must do, but this is an issue that needs to be resolved in New Mexico," Brandenburg said.
The Attorney General's Office handles all cases for the state during the appellate process.
Public defenders for Astorga, 31, had sought the application for an interlocutory appeal after Candelaria denied their motion in March to dismiss the death penalty on the grounds it is unconstitutional.
Candelaria's decision came after a weeklong hearing that brought experts from both sides to testify on the merits of the Capital Jury Project, a study based on years of interviews with 1,198 capital case jurors from 14 states.
The project concluded that jurors were often confused or biased about the process of determining life or death sentences, but Candelaria ruled that the study did not prove New Mexico jurors were similarly challenged.
Candelaria had granted Astorga's attorneys leave to seek the appeal, and Brandenburg had announced that her office did not oppose and in fact welcomed the application.
"We discussed this strategy with the McGrane family at length, with the attorneys prosecuting the case at length and with the sheriff at length," Brandenburg said. "This was not a last-minute decision."
Jeff Buckels, head of the state Capital Crimes Unit of the Public Defender Department and a member of Astorga's defense team, said that, because Brandenburg's office had supported the application with the blessing of the McGrane family, the Attorney General's Office should, as well.
"I don't think the AG should be allowed to make this argument," Buckels said . "All that happened was the state changed lawyers."
If the Supreme Court sides with the Attorney General's Office, the case would be sent back to Candelaria for trial.