The New Mexico Supreme Court currently is deliberating whether to—as public defender Jeff Buckels put it in his May 12 oral argument—"finish off what the Legislature started" and completely end the death penalty.

House Bill 285, signed into law by Gov. Bill Richardson on March 18, was titled "Abolish the Death Penalty." This is a misnomer as the law only applies to crimes committed after July 1, 2009. Convicted murderers Timothy Allen and Robert Fry remain on death row, and accused killers, such as Michael Astorga, could still end up there.

The Supreme Court heard Astorga's case on May 12 before an audience of New Mexico's legal elite, as well as Astorga's family and that of his alleged victim, Bernalillo County Sheriff's Deputy James McGrane Jr. The hearing was a pre-trial or "interlocutory appeal," agreed to by both the defense and the prosecution.

"This is an issue that's being raised in every death penalty case and so we said, 'Let's get it up to the Supreme Court…so we don't have to do this 50,000 times,'" 2nd Judicial District Attorney Kari Brandenburg tells SFR.

Afterward, both sides agreed it's impossible to say which way the court will rule.

 "I don't think they gave lots of room for predictions," University of New Mexico law professor James Ellis says.

At the crux of the debate are the results of the Capital Jury Project, a decade-long research project by the University of Albany, which concludes jurors on death penalty cases don't always follow instructions, often make up their minds before cases have concluded and are sometimes influenced by race.

"The grand point is that the reforms of the death penalty over the last few decades haven't removed the risk of arbitrariness," Buckels, on loan to the Astorga defense for the CJP challenge to the death penalty, tells SFR.

The five justices weren't only interested in data. Their concerns boiled down to three distinct quandaries.

Uniquely New Mexican
The Capital Jury Project conducted its research in 14 states; New Mexico wasn't one of them.

Consequently, a New Mexico State University sociologist testified in trial court, the survey is irrelevant. This point led Justice Charles Daniels, a former criminal defense attorney, to ask if there is something fundamentally different in the "brain synapses" of New Mexico jurors.

 "We've shown that, in New Mexico [as opposed to Texas, Oklahoma or Florida], jurors rarely give the death penalty," Brandenburg, who was represented before the court by Assistant Attorney General Victoria Wilson, says.

Astorga's defense team agrees there's something unique about New Mexicans—an "intolerance to risk"—best exemplified by the recent repeal of the death penalty.

What the Legislature Said
In the fall of 2008, the sides filed their briefs but, by spring, the state had repealed the death penalty. This led Justice Richard Bosson to ask both sides, "What should we make of [that decision]?"

Buckels pointed to Richardson's statements that he had lost faith in the criminal justice system's ability to make life or death decisions.

"How is it that the system is better at it now than after July 1?" Buckels tells SFR. "I think there are very few people who can't just look at that oddity square in the face and say, 'This doesn't make any sense.'"

Nonetheless, Richardson has said he does not think Astorga should be let off the hook.

"There's really no statement on that from the Legislature," Rep. Gail Chasey, D-Bernalillo, HB 285's sponsor, says. "The Legislature did not make a point of not including Astorga."

Right to a Jury
"If juries can't make these decisions, what decisions can they make?" Wilson asked the justices, implying that a ruling in Astorga's favor could jeopardize the constitutional right to a trial by jury.

Ellis says the US Supreme Court has long held that "death-eligible" juries are different than regular juries because of the "finality and irrevocability" of mistakes. In addition, death penalty opponents are always

 Justice Patricio Serna ended the session with a caveat: "We are guaranteed a fair trial, not a perfect trial.