On Friday, Michael Astorga was convicted of murdering Deputy Sheriff James McGrane in an Albuquerque courtroom. I wrote about Astorga in the not-quite-published book Whatever Happened to Justice? This is what I wrote a couple years ago, updated to reflect developments since then:
I worked on a case involving the Astorga brothers, Michael and Matthew. They did something to irritate a drug dealer named Jose Maldonado Sigala, street-named Chemo. Chemo shot up a truck belonging to one of them. So they armed themselves with a sawed-off shotgun and spent five hours hunting their tormentor. When they finally found him, Matthew blasted him five times at very close range. It worked.
At trial, their story was that Chemo somehow got the drop on Michael and was about to shoot him in the head. Matthew heard the pistol cock and, knowing his brother's very life was at stake, fired first (and second, and third ...).
Others were present at the scene and none observed a gun in Chemo's hand. No gun was found at the scene. But the brothers stuck with their story. Matthew got on the stand and said he would do it again in the same circumstances: "I saved my brother's life is what I did." The jury didn't buy it and convicted him of murder, although it acquitted his brother.
The New Mexico Court of Appeals reversed Matthew's conviction, holding that the trial judge should have instructed the jury on manslaughter, a crime that carries a much shorter prison term. The appeals court's theory was that maybe Matthew made an honest mistake when he thought his brother's life was in danger – the exact opposite of what he said in his testimony, when he flat-out testified he would do it again.
[All you lawyers out there know that manslaughter traditionally requires the killing be done in the heat of passion, before a reasonable person would have had time to cool down. New Mexico's manslaughter statute follows the traditional line. So the Court of Appeals was holding that a reasonable person could - Excuse me, I should have said, an ordinary New Mexican would arm himself with an illegal sawed-off shotgun and spend five hours hunting for the person who pissed him off, and shoot him five times, without calming down.]
In practical terms, the appeals court gave him the chance to tailor his testimony at a second trial to support an alternative strategy, letting him see if a different false story might prove to have greater jury appeal. After the case was sent back to the trial court, Matthew was allowed to plead guilty with a sentencing cap and was out of prison in a few years.
I have no doubt the court would have decided the case differently if the victim had been someone the judges identified with – some middle-aged lawyer, say – rather than a gun-toting drug dealer with a nickname like Chemo. [Note: I also think the jury would have convicted him of first-degree deliberate intent murder, which is what it obviously was - an assassination.] But the reversal didn't really matter to my life. After venting to sympathetic colleagues I moved on to the next case.
For the Astorga brothers, Matthew's victory on appeal was obviously a far more significant event. What lesson did they learn from it? Just a year or two afterward, a third brother, Anthony, learned that his wife, whom he was divorcing, had a boyfriend. He shot and killed the boyfriend in front of two young children, one of them his own. He eluded police for months before finally getting caught during a traffic stop.
Next, according to police, Michael shot and killed a childhood friend in a dispute over a car. He, too, managed to stay on the run for months before being stopped by a sheriff's deputy for a traffic infraction. But, having learned from Anthony's experience, he shot and killed Deputy McGrane.
And then, on the day after Christmas, 2008, Matthew was in the news again, arrested in Kansas on a charge of shooting a man to death. He went to the man's house, lured him outside, and shot him - another assassination. In Kansas, though, he was convicted of first degree murder.
That's four more gun deaths attributed to the Astorga brothers, three of which have already resulted in murder convictions, since the New Mexico Court of Appeals reversed Matthew's conviction for blasting a man five times point-blank with an illegal shotgun.
It's almost as if the lesson the Astorga brothers drew from Matthew's and Michael's experience at the trial for killing Chemo was that the risk of getting caught for shooting a man to death isn't sufficient reason to refrain from shooting a man to death.
If that's the conclusion they reached, it wouldn't have been irrational. But it was wrong. Matthew got lucky the first time, and Michael got even luckier, but you can't count on luck. Anthony and Matthew are already in prison for life, and Michael will share their fate pending appellate and habeas review. [In theory he also faces the possibility of execution, though I can guarantee you it won't happen unless he volunteers.]
The Astorga brothers neatly illustrate how America achieved the industrialized West's highest rates in both homicide and incarceration: with its willed incompetence, our criminal justice system alternates between declining to punish and punishing severely. We encourage violent criminals to feel invulnerable, then savagely demonstrate how mistaken they were to feel that way.
Given the tender sensibilities of certain government officials, it might be necessary or at least prudent of me to spell out the obvious: I'm not saying the Court of Appeals caused the four subsequent gunshot deaths - the Astorga brothers were quite capable of causing them on their own. (And I would hardly be surprised to learn that "four" is an undercount.)
But is it possible for anyone to believe the jury's and appellate court's decisions in the Chemo killing had no influence on the subsequent lives of the brothers? After all, if the criminal justice system doesn't influence the behavior of criminals, why do we have it? Of course the decisions influenced the brothers' lives. The only question is: how? What lesson did they learn?
The killing of Chemo was first degree murder all the way. The jury gave one brother what amounted to a public-service pardon for it -- retroactive permission to hunt down and kill a person, when that person was a drug dealer with a sinister nickname who had shot up a car, so long as he didn't personally pull the triggers.
The ultimate effect of the Court of Appeals' decision in the other brother's case turned out to be indistinguishable from a commutation, cutting the sentence by half. (That was ultimately the prosecutor's decision, of course, not the COA's - in New Mexico, for some reason, a step-down plea bargain is traditionally offered following appellate reversal.)
At the very least, we have to agree that Matthew's and Michael's experience with the legal system following the assassination of Chemo didn't deter the three brothers from committing the same crime again.
Is it really a stretch to suggest the lesson they took from the experience was the opposite of deterrence?