*Governor Richardson signed HB 285 into law late on Wednesday, March 18, 2009.
From his cell in the state’s supermax prison, Michael Astorga has a personal TV he watches to keep up with the news. It’s a small screen, but the big picture is clear: New Mexicans are conflicted over the death penalty—and he’s right in the middle of it.
Astorga has not yet been tried for his alleged murder of a sheriff's deputy in 2006, but he doesn't expect a fair trial.
"From the start, it's pretty much been a witch hunt," Astorga says in an exclusive interview with SFR.
Astorga awaits trial housed in Level VI of the Penitentiary of New Mexico, 15 miles outside of Santa Fe. Astorga agreed to an interview about his conditions, personal life and politics, but not his case.
As of March 13, HB 285, the bill to replace the death penalty with life without the possibility of parole, passed both bodies of the Legislature. As of press time, the bill awaits Gov. Bill Richardson's signature or veto. If signed, HB 285 would not affect capital cases in which the crimes were committed prior to July 1, 2009. New Mexico's two death row inmates, Robert Fry and Timothy Allen, would still face the death sentence and Astorga could still receive it.
In other words, Richardson, previously a staunch supporter of capital punishment, can sign the repeal while honoring his previously stated belief that Astorga should receive the death penalty.
Police believe Astorga shot Bernalillo County Deputy Sheriff James McGrane Jr. in order to avoid arrest related to another alleged murder. After a 12-day manhunt involving 250 officers and an America's Most Wanted special, Astorga was arrested in Juarez, Mexico. Richardson negotiated Astorga's transfer to the US.
"In rare situations, the death penalty is the appropriate penalty," Richardson said in the 2006 press release aimed at the prosecutor, Bernalillo County District Attorney Kari Brandenburg. "This is one of those cases."
Astorga says it's not a laughing matter, but he can't help but smile when he remembers the statement.
"I would like to ask the governor why he would make those kinds of comments without having any of the facts," Astorga says. "What kind of role model is he being for the rest of the citizens of the state?"
Brandenburg tells SFR the governor's opinion didn't impact her decision to pursue the death penalty; the death penalty is legally appropriate when law enforcement officers are murdered.
"Even if the president sent me a letter or whatever, that's not going to keep me from doing what I believe is the right thing to do," Brandenburg says.
Richardson has until midnight on March 18 to act on the bill. That will be a little more than a week after Richardson attended the renaming of a section of highway 14 for the slain deputy. Richardson's deadline is also four days before the anniversary of McGrane's murder.
McGrane's parents, Rita and James McGrane, have actively spoken out against the repeal of the death penalty.
Blogger Heath Haussamen says Richardson is playing the political controversy smartly.
"A governor dogged by the pay-to-play allegations and still stinging from his failed bid to become commerce secretary needs a big win," Haussamen says. "Signing the bill would earn him positive international attention, while vetoing the bill would do the opposite. I think he'll drag it out…Why not create suspense and get even more attention?"
Political analyst Brian Sanderoff disagrees: Richardson's decision will alienate a large chunk of the state, regardless.
"With Democrats there are a handful of issues that put them in a political dilemma and this is one where, on top of the political expediency issues, they have some true soul-searching to do," he says.
Sanderoff adds that Richardson has found success in the past with his pro-gun, pro-death penalty "New Western Democrat" persona.
Nonetheless, it's hard to argue with a December poll in which 64 percent of New Mexico citizens support the repeal.
The death penalty debate tends to break down along party lines; every New Mexico Senate Republican voted against the repeal.
Leading up to the floor vote in the Senate on March 13, Sen. Sue Wilson Beffort, R-Bernalillo, spoke at length about the McGrane case in her arguments for the death penalty.
"[McGrane] is the [deputy] that was gunned down by Michael Astorga, who later indicated that he shot the sergeant in the head rather than be caught on an outstanding warrant," Beffort said.
Beffort spoke erroneously: Astorga has not been convicted and claims innocence. In an interview with SFR the next day, Beffort said she regrets the statement.
"I apologize that I misspoke, that I overstepped the fact that the conviction hasn't actually happened," Beffort says. "It was an emotional vote for all of us…I should've used the word 'accused.'"
In her floor speech, Beffort also argued that a life sentence without parole gives a murderer the chance to escape; only the death penalty can guarantee a convicted murderer won't be back on the streets.
If a death penalty conviction can be secured, that is. Using US Bureau of Justice Statistics data, the Legislative Council Service determined there is only a 4.5 percent chance a prosecution will end in an execution in New Mexico.
"Michael Astorga is a situation where, if he's convicted, he's looking at 30 years if he doesn't get the death penalty," Brandenburg says. "He would probably walk the streets again even if he's convicted. That makes me feel very uncomfortable."
Life without possibility of parole, Brandenburg says, would be easier to sell to juries and would satisfy a lot of victims' families.
Brandenburg and Astorga (who is represented by American Civil Liberties Union of New Mexico President Gary Mitchell) may be on opposite sides of the courtroom, but they share certain ambivalences about the death penalty issue.
"The death penalty, I believe, is for certain people," Astorga says and then admits he often contradicts himself on the issue. "I think the majority of New Mexicans contradict themselves…I guess I believe no man on earth should be given that kind of power to take someone else's life."
But Astorga brings up the 2003 Las Cruces case of 5-month-old Brianna Lopez, who was molested and murdered by family members.
"I'm sensitive when it comes to certain things, like children being molested," Astorga says. "That is also a Catch-22. Brianna didn't have a chance, but who am I to say who's to live and who's to die."
If Richardson signs the bill, the governor faces that same decision: Will he commute the sentences of New Mexico's two death row inmates to life without parole? Will he do the same for those accused of capital offenses committed before July 1?
"It really will be interesting to see if we can abolish the death penalty and people are still interested in executing people," Viki Elkey, executive director of the New Mexico Coalition to Repeal the Death Penalty, tells SFR.
As Astorga watches Richardson on TV in his 8-by-12 cell, he thinks the governor is having not so much a change of heart as a "contradiction" of heart.
"I want to know that everybody gets a fair deal," Richardson told KOAT-TV shortly after the Senate passed the measure. "This can't be politics, can't be votes and can't be polls. It's a conscience matter."
Astorga says it's a matter of justice; New Mexico picked his sentence before even proving he had committed a crime.
"If I'm innocent of the whole thing, which I claim to be, why should the death penalty matter or not to me?" Astorga asks. "They convicted me from the start. Whatever happened to innocent until proven guilty? In this case, it's the other way around."
Alive, from Level VI
SFR’s exclusive interview with Michael Astorga
In late 2008, Michael Astorga contacted SFR and requested an interview to discuss his conditions in the state’s Level VI supermax facility at the Penitentiary of New Mexico. It took more than three months to arrange for the interview, which ultimately coincided with the New Mexico Senate’s debate over HB 285, the bill to abolish the death penalty.
Prosecutors are pursuing capital punishment against Astorga, who is accused of the 2006 shooting of Bernalillo County Sheriff’s Deputy James McGrane Jr. Although the repeal bill is currently on the governor’s desk, it would not affect Astorga’s case. However, his name and his alleged crime have been at the center of debate over capital punishment through the session.
This isn’t the first time Astorga’s been incarcerated—nearly a decade of time was put into the prison tattoos on his arms. But this is the first time he’s been in prison without first being convicted; in 2006, the New Mexico Department of Corrections agreed to house the high-profile inmate for Bernalillo County.
Astorga would not speak about the facts of his case, only his conditions, personal life and political opinions.
SFR: You’ve been here for more than two years now without a press visit. Why grant an interview now?
The main issue is the confinement. I’m a county detainee in a state prison. I’ve been here going on three years now. I’m confined to 23 hours a day, sometimes 24 hours a day.
What happens during that one hour out of your cell?
They take us outside to a pen where we can exercise, walk around, talk and basically just get fresh air.
Is there anything you do specifically when you’re out there? Walk, jump rope?
Nah, you can’t jump rope...Basically, most people exercise or whatever, but considering the issues that I’ve been having, I haven’t exercised in quite some time. I just go into one corner, maybe talk to someone.
Take me a through a day for you. What time do you get up in the morning?
I get up at about 5:30, do my chores around the house, wash up, make my bed, get ready, clean up around the sink and stuff and then I’ll sit down and drink coffee. I have a routine where every day of the week, I’ll read my bible before I go to sleep and when I get up. We receive breakfast around 6:30 am. Lunch is around 11:30. Dinner is at about 4 pm. I have an average of 20 to 30 minutes to eat. Basically I just get my meals and I’ll put them in a bowl and I’ll save them until I’m hungry.
How would you characterize the food?
Considering most places? Fair.
Do you have a television in your cell?
Yes, the state provides all of us with television if you’re in disciplinary [segregation]...It’s going to sound really gay, but I like The Bachelor.
Who comes to visit you?
My wife and my little boy. He’ll be three now in June. He’s a funny little guy. I’m amazed by the way he carries himself. For being as young as he is, he’s pretty intelligent. Sometimes he surprises me.
What would you do if you were out right now? If they let you out today?
I would get my son and take him fishing at Rio Chama. Kokanee salmon, German brown trout...
That was right off the top of your head. Do you think about that a lot?
Let’s say that things work out the way you want with this court case and you’re acquitted. Will you be able to have a normal life after this?
I would hope so, but I doubt I would. After getting out after the last round, I thought I would have a normal life, but things were different. Both me and my brother were charged for murder in the early 1990s. I was acquitted and he was found guilty and it seems like ever since I was acquitted of that murder, my life hasn’t been the same. Even getting pulled over for a simple traffic ticket becomes a different ball game. One evening me and my wife were out at the movie theater—I hadn’t been there before, [the theater] was built while I was incarcerated—and all we were doing was watching a movie, but I guess [the police] scanned my license plate. When we got our snacks, I saw that they kept focusing their attention on me. We were pulled out of the movie theater and they went through my car and all that. It’s just been an ongoing situation since the early 90s.
When you were arrested in 2006, Gov. Bill Richardson issued the statement: ‘In rare situations the death penalty is the appropriate penalty. This is one of those cases.’ How did you react when you heard this?
It’s not a laughing matter, but yet I laugh. You’ve seen from the start, it’s pretty much been a witch hunt. How could you make those kind of allegations without any kind of proof?…When we think of it or speak about it, it’s not a laughing matter, but it is, because the way they all manipulate things to their certain advantage. Legitimately, I haven’t been convicted, but I have. I was convicted from the start. Whatever happened to innocent until proven guilty? In this case it’s the other way around.
Is there anything you would like to say to the governor as he considers whether to put his signature on the bill to repeal the death penalty?
I would like to ask the governor why he would make those kinds of comments without having any facts. Yes, an officer was killed, but who killed him? I’ve been guilty of the crime from day one, without them having any knowledge. There’s no facts behind it and I just don’t understand how he could do that, being that he’s the governor. What kind of role model is he putting for the rest of the citizens of the state?
If the death penalty is repealed, obviously that doesn’t change your case, but does that make it lighter for you?
I mean, to be honest, if I’m innocent of the whole thing, which I claim to be, why would I even care, with the death penalty or without the death penalty. It doesn’t really matter. The death penalty I believe is for certain people. I mean they hadn’t used it for what 30-something years up until Terry Clark. When they used it on Terry Clark, who requested it? Terry Clark himself…I think the death penalty contradicts itself. When I sit back, look at it, think about it: a majority of the citizens of New Mexico contradict themselves.
What do you mean by ‘contradict?’ You say the death penalty is ‘for certain people.’ Does that mean you believe in the death penalty?
I believe that no man on earth should be given that kind of power to take someone else’s life. I guess, I don’t believe in it, but I’m sensitive when it comes to certain things like children being molested. That also is like a Catch-22 question for me, because if you take back to the Brianna case, she was, what, only a four-month old baby? She didn’t have a chance. But who am I to say who’s to live and who’s to die?
During the 2008 campaign, Darren White for Congress ran an ad featuring the parents of the person you’re accused of killing. At one point they call his opponent, Martin Heinrich, ‘despicable.’ How did you react when you saw it?
When you look at Darren White’s career: He thrives on publicity and he’ll do pretty much whatever it takes to get publicity. Looking at that campaign, I just told myself, ‘how could this man use another man’s life to campaign?’ That’s despicable if you ask me. If you follow Darren White’s career, how did Darren come to be Darren White? By smearing other people.
When you were young, did you have any interests in a career?
I’ve always worked on cars, built classic cars. That was always my dream, to open a paint and body shop and just build cars.
Is that what you’ll do if you get out of here.
You spent almost 13 years in prison earlier. What does that do to a person?
Nothing really. It’s all up to the individual. It could drive a person crazy if they allow it. The large sentence that I completed, the difference then was that I was selling drugs. There was no telling where it was going. I liked to sell drugs. To live the lifestyle that I’m used to or to build the cars I build, you can’t do it working at McDonalds or through minimum wage. So I sold drugs to do it and at that time I was 18 years old. Penitentiary did something for me, where it changed my life around. Now, when I sit back and look at what I’m against... Have you ever done something and gotten away with it and were like, ‘Yeah, I got away with it?’ Well, now you’re sitting here for something you didn’t commit. You ask yourself, ‘is this how I’m being repaid for the things I did get away with?’
Let me ask you. We’ve gone through a lot of questions. Ideally, what would you like to see come out of a story?
There’s always two sides of a story. For the last three years, it’s been one sided. I remained silent for a long time, where I thought, a year will go by, two years will go by, it will blow over, things will be different, the truth will finally come out. The more it’s going, the more it’s going...I look at some of the stuff my lawyer’s office sends me, but like I said it’s not a laughing matter, but I do laugh. How can things have gotten so far out of hand because of politics?
Santa Fe Reporter