Tuesday, April 04, 2006


The news this week is that Michael Astorga was arrested in Mexico. He is suspected of murder of a Deputy Sheriff officer near Albuquerque. The news reminded us of the case of Jose Franco Padilla. State v. Padilla, 66 New Mexico 289 (1958).

Padilla was wanted for rape murder of a female child nine years old. The abduction and killing happened near Roswell, New Mexico. Padilla fled to Mexico, and was arrested by Mexican authorities 600 miles south of the border. The Mexican authorities transported Padilla by automobile to Juarez and turned him over to the Roswell authorities at the border at El Paso, Texas; from there he was brought to Roswell. He confessed to abduction, child rape and murder of the little girl, and claimed he was influenced by marijuana and alcohol.

During his confession, Padilla said he traveled 600 miles without urinating, even though the Mexican authorities invited him several times to get out of the car and walk out to relieve himself. He said he feared that he would be shot for attempted escape.

This Astorga case, in which the accused is facing capital murder charges of murder of a police officer [the officer stopped a vehicle and was killed by gunshot], brought some strong opinions on the afternoon KKOB radio show (Jim Villaneucci). Many were concerned that Mexico would not agree to th extradition of Astorga, unless the United States guaranteed that the death penalty would not be sought.

Some suggestions the radio listeners put forth: 1) when we apply for extradition, we should lie about our intentions, that is, conceal the possibility that we will seek a death penalty -- several tricky means worthy of mouthpieces were suggested; 2) let us send a hit person to kill him; and 3) let us bring him back on a guarantee of no death penalty, and let the “prison justice” take care of the problem [let him be killed in prison by a verdict of the other prisoners, his peers].

Obvious objections to those three proposals are that the first is a proposal that the State of New Mexico commit a fraud; the second is that the State of New Mexico should stoop to murder in its war on crime; and the third is that while Astorga may be convicted of killing a gang memember in November, he will also be convicted of killing a law enforcement officer. What are the rules of the “prison justice” system? Will Astorga escape punishment for the gang killing because he is a member of another gang? Is his mistake in killing a gang member offset by the fact that he killed a deputy?

Why all this turmoil? Is it because we have seen that there have been only two people executed in the last 45 years, and we are fed up with death row delays, reprieves, appeals, technicalities, and commutations? Governor Toney Anaya said during his race for Governor that he was opposed to the death penalty, and that no convict would die on his watch. What he did not say was that he had no intention to commute the sentences of all five persons on death row. Therefore, a commutation of death penalty sentences did not constitute a breach of a pre-election pledge. As he left office, Governor Anaya commuted to life imprisonment, the death sentences of all five death-row prisoners. At that point many of us mentally threw up our hands.

Here is another question. If the death penalty does not deter, why have a law that provides for the death penalty for the murder of a police officer and not Joe Sixpack?

A final question. If the accused is not tried within six months, will the case be dismissed under the “six month rule” adopted by the Supreme Court of New Mexico [as a legislative matter]? Will a clerical mistake in the office of the District Attorney or the office of the Clerk of the District Court, which does no real harm to anyone, result in release [mandated by the Supreme Court under its legislative powers, without regard to the discretion of the trial Judge) of the accused, free of all charges? Unfortunately, that is our “six month rule.”

The rule is not required by the Constitution of the United States; nor by the Constitution of New Mexico; nor by any rule or law except the rule adopted and continued by the majority of the persons now serving on the Supreme Court. The federal rule requires a trial within 70 days; but leaves it to the Judge as to the sanction for a violation. The New Mexico Supreme Court dictates in advance that a clerical error shall set a murderer free, regardless of the circumstances, and regardless of what the trial Judge may think. Why do we tolerate this?