110. Astorga

Readers from New Mexico will know at once to what the title of this post refers.  For everyone else, here's a selection of stories and a profile of suspected cop-killer Michael Astorga.  According to the Albuquerque Journal, two of Astorga's brothers have previously been convicted of murder.  (April 15, 2006, front page.)  Michael looks well-positioned to help his family achieve a rare hat trick.

Today's Journal ran an editorial about Michael's little brother Matthew Astorga.  Under the headline, "State Should Toughen Sentences for Convicts," the editorial read in part:

 Human life is cheap in New Mexico. For cutting down a man in Martineztown with five shotgun blasts, Matthew Astorga served about five years in prison before being paroled.

 Astorga was convicted of second-degree murder in 1997 and sentenced to 16 years. His brother Michael Paula Astorga, now awaiting trial in the March shooting of a Bernalillo County Sheriff's deputy, was acquitted as a codefendant in the '97 case.

An appeal resulted in a new trial and another bite of the justice apple for Matthew Astorga. He plea-bargained to the second-degree murder— the same charge he was convicted of the first time— but got his sentence reduced to eight years, from which he shaved three for "good-time."

That's one more piece of evidence to support Bernalillo County Sheriff Darren White's argument that it's time for "the governor and the Legislature to toughen the laws so murderers are held accountable."

I'm glad the Journal is paying a little attention to the half-functional New Mexican criminal justice system, but their diagnosis of the problem is all wrong.  As it happens, I was the appellate prosecutor who lost Matthew Astorga's appeal.  The light sentence he received had nothing to do with inadequate statutes. 

It went like this:  Matthew took the stand in his own defense and claimed he shot Jose Maldonado Sigala in order to protect his brother, Michael.  He testified: "I saved my brother's life is what I did," and said he would do it again if placed in the same situation.  The jury didn't believe him and convicted him of second-degree murder.

The New Mexico Court of Appeals reversed, holding that he was entitled to a jury instruction on voluntary manslaughter. The following is an edited excerpt from a motion I filed in the New Mexico Court of Appeals asking that court to reconsider its decision to reverse Matthew's conviction:

____________________

 Should the Trial Judge Consider Facts Not in Evidence When Deciding Whether to Give a Particular Jury Instruction?

The memorandum [i.e., unpublished - see post 97] opinion observes that Defendant testified that he heard a gun being cocked.  The memorandum holds that the jury, after hearing this evidence, could have "concluded that Defendant misjudged the situation and was mistaken in his belief that he needed to fire in self-defense."  The evidence at trial was that either   (1) the victim was unarmed at the time of his death [which is what every other witness said]; or, (2) the victim was armed, and was pointing the gun at Defendant's brother, and prepared the gun for shooting by cocking it or releasing the safety [which is what the Astorga brothers said].  No reasonable person can doubt that situation number 2 threatened Defendant's brother's life, but situation 1 did not.  Therefore, the memorandum opinion's reference to Defendant misjudging the situation can only mean that Defendant was mistaken in his belief that the gun's safety was being released, or the gun was being cocked.

Thus the question on this appeal is whether testimony that Defendant heard a gun being cocked can support a reasonable inference that Defendant did not hear a gun being cocked.  The state respectfully submits that this is not a matter on which reasonable people can disagree.  Just as the conclusion "it is daytime" is not logically deducible from the statement "it is nighttime", the conclusion that Defendant did not hear a gun being cocked is not logically deducible from testimony that he did.

___________

Needless to say, the motion for reconsideration was unsuccessful.  The New Mexico Supreme Court agreed to review the appellate court's decision but subsequently changed its mind (i.e., quashed its writ of certiorari as improvidently granted).   If life in New Mexico is as cheap as the Journal claims, it's not because the statutes are lax.