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New Mexico high court eyes whether inmates can be executed

April 11, 2018

This Feb. 15, 2017, photo from the New Mexico Corrections Department shows inmate Timothy Allen, one of just two men remaining on the New Mexico's death row after the state repealed capital punishment in 2009. Defense attorneys for Allen and Robert Fry Tuesday, April 10, 2018, urged the state Supreme Court to consider an array of similar murder cases resulting in lighter sentences, as justices weigh whether to move forward with the executions in a state that no longer allows death sentences. (New Mexico Corrections Department via AP)

SANTA FE, N.M. (AP) — Defense attorneys for New Mexico’s two remaining death row inmates on Tuesday urged the state Supreme Court to consider an array of similar murder cases resulting in lighter sentences, as justices weigh whether to move forward with the executions in the state that no longer allows death sentences.

New Mexico repealed capital punishment in 2009 without canceling death sentences against Robert Fry and Timothy Allen in connection with two killings. New Mexico’s governor at the time, Bill Richardson, signed the repeal without commuting their sentences.

The state Supreme Court agreed in 2013 to consider appeals of death sentences against Fry and Allen in light of the repeal of capital punishment but has wavered on ground rules for deciding whether the death penalty still fits the crimes when considering other cases.

Justices listened for two hours Tuesday to oral arguments, with a ruling still likely to be months away. The New Mexico Attorney General’s Office urged the court to stick closely to 1980s-era guidelines for reviewing the “proportionality” of death sentences against Fry and Allen.

Assistant Attorney General Victoria Wilson said that limits consideration only to other murder cases within the state that have virtually the same aggravating circumstances. She said deliberations primarily should focus on whether the death sentences were applied with good reason and not arbitrarily.

“We still find that this sentence is proportionate because the ultimate question is: ‘Was this sentence imposed arbitrarily?’” Wilson said.

Attorneys for the two death-row inmates urged the court to cast a wider net for comparable cases in which defendants received life sentences for more appalling murders of defenseless children or the elderly.

Kathleen McGarry, the defense attorney for Fry, said that type of review would show that her client is being punished unreasonably.

“What we’re looking at are cases that are far worse than Mr. Fry’s case and yet those persons are not going to be ... sentenced to death,” McGarry said. “How does that make Mr. Fry’s death sentence be the poster child of what we’re going to do here in New Mexico?”

The state Supreme Court previously heard oral arguments on the case in 2014. Lawyers for Fry and Allen have said the death sentences violate state and federal constitutional provisions against cruel and unusual punishment and equal-protection guarantees.

Fry, the last person sentenced to death in New Mexico, was convicted of the 2000 killing of Betty Lee in northwestern New Mexico. The mother of five was stabbed and bludgeoned with a sledgehammer in a remote area of San Juan County. Fry also has been sentenced to life in prison for three other murders in 1996 and 1998.

Allen was sentenced to die for strangling 17-year-old Sandra Phillips of Flora Vista in 1994. He also was convicted of kidnapping and attempted rape.

New Mexico’s last execution was in 2001. Child-killer Terry Clark was the first person to face capital punishment in the state since 1960.

Attorneys for Fry and Allen says Clark’s execution has little bearing on death penalty appeals because eventually asked to be killed.

Supreme Court Justice Charles Daniels said it may be difficult to show that New Mexico is consistently applying the death penalty.

“In the first 47 years of our existence as a state, we executed 27 people with fairly regular frequency,” he said. “In the next 57 years, we executed one — at a time when there were horrible murders and over 200 where the death penalty was sought.”

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