The death penalty will be debated this week in an Albuquerque court room.
Two years ago, Bernalillo County Sheriff's Deputy James McGrane was shot to death in the east mountains.
The man accused of that crime, Michael Paul Astorga, is still waiting to be tried. He pleaded not guilty to murder charges.
His lawyers and prosecutors agree about one thing: before they can even argue about Astorga's guilt or innocence, the need to settle a question about the constitutionality of New Mexico's death penalty law.
The district attorney wants to ask potential jurors about the death penalty. That is the punishment prosecutors want to pursue if Astorga is convicted of killing McGrane.
Astorga's lawyers say that studies show jurors willing to hand out the death penalty are predisposed to finding a defendant guilty. Therefore, it's not fair to ask the question.
In the first day of proceedings Monday, retired lawyer Marcia Wilson told the judge that she'd made a study of death penalty cases in New Mexico for a Bar Association project in 2000, then expanded it as an avocation over the years.
Defense attorney Gary Mitchell presented his analysis of Wilson's data.
"If the victim is white, we give the death penalty far more often and a higher percentage if the victim is white than we do if the victim is Hispanic, African-American or Asian or Native American," Mitchell said, adding that Astorga would not get a fair trial if the death penalty is in effect when his trial gets underway.
But later under cross-examination, Wilson admitted that it was not a scientific study and it had not been subject to any kind of academic review.
Prosecutors went on to point out that several notorious death penalty cases were either misrepresented in Wilson's database or missing entirely.
Both the prosecution and defense are expected to call several expert witnesses. The hearing could last all week.
Judge Candelaria will preside over the case. Whatever the judge rules is expected to be challenged in New Mexico's Supreme Court.
The actual murder trial may not begin until this summer.
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