New Mexico Supreme Court vacates remaining death sentences

The New Mexico Supreme Court voted today to vacate the death penalty sentences of the state's last two remaining death row inmates in a divided 3-2 decision.

New Mexico became the 15th state to abolish the death penalty in 2009, but Timothy Allen and Robert Fry remained on death row because their sentences were handed down before the repeal. Allen was sentenced in 1995 for the 1994 kidnapping, attempted rape and murder of 17-year-old Sandra Phillips, and Fry was sentenced in 2002 for the 2000 kidnapping, attempted rape and murder of 36-year-old Betty Lee, as well as evidence tampering.

"This has been a long road for Mr. Allen and Mr. Fry and both of the legal teams that represent them," Kathleen McGarry, Fry's attorney, tells SFR. "We're just happy it turned out that our clients will not be executed."

New Mexico's dormant 1979 capital punishment statute under which Allen and Fry were convicted requires the state's highest court to review all death penalty cases, and prohibits the penalty when it is seen to be "excessive or disproportionate" in comparison to the punishments given in similar cases.

"In comparing petitioner's cases to other equally horrendous cases in which defendants were not sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen," Justice Barbara J Vigil wrote, explaining the majority opinion.

Chief Justice Judith K Nakamura and retired Justice Petra Jimenez Maes dissented, with Nakamura writing, "The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico."

"It's been a lot of time spent in the New Mexico Supreme Court," McGarry says. The decision was years in the making: The Court first heard a joint appeal from lawyers for Allen and Fry in 2014, where their legal teams argued that the death sentence was a violation of the state's constitution, leading to justices asking the legal teams for more information that expanded on the argument of proportionality rather constitutionality. The attorneys presented their final cases with the proportionality arguments to the justices in April 2018.

The two mens' cases will be sent back to District Court in San Juan County for a judge to impose life sentences. They will both be eligible for parole after 30 years served; however, if paroled, both men face additional charges that would have to begin immediately serving: Allen faces an additional 25-year sentence, and Fry will never be eligible to leave prison because he faces an additional 120 years for three other first-degree murder sentences.

"A killer's crimes reflect who he is. What we do to the killer reflects who we are," wrote retired Justice Charles W Daniels.