Death penalty on trial at hearing for man charged with shooting

Albuquerque, New Mexico (AP) 3-08

Defense attorneys for a man suspected of killing a Bernalillo County sheriff’s deputy in 2006 are using research and statistics to challenge the constitutionality of the death penalty.

Attorneys for Michael Paul Astorga, who is accused of killing Deputy James McGrane Jr., argued during March that the death penalty isn’t fair because jurors selected for trials where capital punishment is a possibility are predisposed to the death penalty and the defendant’s guilt.

“You can’t have just a small portion of the people of the state of New Mexico who are in favor of the death penalty sitting as jurors ... and expect that to be a fair trial,” said Ruidoso lawyer Gary Mitchell, Astorga’s attorney and a death penalty opponent.

Astorga, 31, is charged with first-degree murder in the March 2006 shooting of McGrane during an early morning traffic stop. Astorga was arrested in Mexico several days later.

The defense presented its first witness . Retired lawyer Marcia Wilson offered up statistics about the 210 death penalty cases filed in New Mexico since the state’s capital felony sentencing act took effect in 1979.

Wilson, a member of the State Bar of New Mexico’s task force on the death penalty, said her database shows that since 1979, 15 men have been sentenced to die but only one was ultimately executed.

She also testified that out of the death penalty defendants, more than 47 percent were Hispanic, about 40 percent were Anglo, 6.4 percent were black and 4 percent were American Indian.

Wilson acknowledged under cross-examination that her research wasn’t scientific and had not been subject to any kind of academic review.

The defense is also expected to introduce findings from the Capital Jury Project, a study funded by the National Science Foundation. The project was based on 1,201 juror interviews from 354 capital trials in 14 states, not including New Mexico.

Bernalillo County District Attorney Kari Brandenburg said the study is flawed because of the way jurors were selected, the length of the time between trials and the way questions were asked in the interviews.

She said her office is prepared to take the issue “as far as it needs to go” to see it resolved.