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June 18, 2007

Intriguing capital ruling from New Mexico

The Death Penalty Information Center has an interesting report here on a state court ruling that essentially deems New Mexico's death penalty practices unconstitutional.  Here the DPIC's report:

Ruling in a pre-trial matter in New Mexico, Judge Timothy Garcia of Santa Fe County's First Judicial District Court held the state's death penalty law to be unconstitutional based on a study by the Capital Jury Project.  The Project's research in 14 states had found that jurors often do not follow the law in making their sentencing decision. In particular, the judge found that the jurors' propensity toward making their sentencing decision during the guilt-innocence phase of the trial was "an arbitrary and capricious violation of the United States Constitution and the New Mexico Constitution."

The judge said that he would allow the death penalty trial to go ahead provided separate juries were selected for the guilt-innocence phase and for the sentencing phase, even though that change was not provided for under New Mexico law. The state elected to forgo seeking the death penalty entirely, thereby putting off a legal confrontation on this issue. (New Mexico v. Dominguez and Good, No. D-0101-CR-200400521 and 522, Order, June 8, 2007).

I would be grateful to hear more from readers about this notable ruling (which I've not seen).  Judge Garcia's ruling could have profound national implications if other court's were moved by his insights and conclusion.

UPDATE:  Thanks to Karl at Capital Defense Weekly, you can now read the Dominguez and Good opinions at this link.

June 18, 2007 at 12:43 PM | Permalink


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Hmmmmmm. We're going to abolish the death penalty because of a juror study . . . .

er, judge, we live in a democracy . . . . the supposed attitudes of jurors cannot be the basis for abolishing the death penalty

Posted by: federalist | Jun 18, 2007 1:35:48 PM

The study seems a bit inflammatory. First, it purports that African Americans are excluded from death penalty cases more often than other groups -- implying that such exclusion is race based. The study then goes on to state that African Americans are twice as likely as caucasians to oppose the death penalty. Thus, doesn't appear to discrimination as a basis for exclusion, but an attempt to sit a "death eligible" jury. (Think what you will of that.)

Second, the concept that 50% of juries decide the penalty before the sentencing phase is quite distinct from a finding that 50% of juries decide on death before the penalty phase. I think what you run into is common sense -- some jurors will find that no matter what mitigating evidence is presented, it will not outweigh the aggravating nature of the crime. And for that matter, some jurors will conclude that the crime itself does not warrant death, regardless of what the state might present at sentencing. I see nothing inherently wrong with forming either of these conclusions.

If pre-judging were a basis for a constitutional violation, we could never seat a jury in any case. Jurors invariably reach decisions on guilt or innocence before hearing all the evidence, despite being ordered not to do so. There's simply no evidence to suggest that this human nature is different in the death context, or specifically, constitutionally different in that context.

Posted by: JustClerk | Jun 18, 2007 1:51:24 PM

Looks like another judge who thinks his personal policy prefereces trump the codified law enacted by the elected representatives of a sovereign state. If he wants capital punishment in New Mexico to mirror his vision of due process, then he ought to resign his commission as a judicial officer and run for the legislature.

Posted by: Large County DDA | Jun 18, 2007 3:22:15 PM

State judges are elected in New Mexico, so you'll have to set aside the normal republican talking point about a judge usurping democracy. If the people of New Mexico don't like his view of the law, they can certainly elect a new judge next election.

Posted by: Elson | Jun 18, 2007 4:50:32 PM


Whether this judge was elected or is removed from his position in the future by the voters of New Mexico, this judge has just defined "usurping democracy" by ignoring state law and implementing his own policy decision. Your attempt to cast aside the "talking point" is rather meager because, unfortunately, the State did not position itself to appeal the decision and now there is a low-level precedent on the books. The judge's decision cannot simply be cast aside by voting him off the bench. Granted, it's a weak "precedent" since it came from a trial court and isn't going to be appealed, but it's a dangerous ruling nonetheless if, as Prof. Berman speculated, other courts latch onto it as support.

Posted by: Ben D | Jun 18, 2007 5:10:22 PM

But "ignoring the law and implementing his own policy decision" is not analysis but just your conclusion because you disagree with the judge's view on the law. Why is it when a conservative disagrees with a judge who issues a liberal decision, it is because the judge has decided to ignore the law -- why can't there be an honest disagreement with you about what the law requires?

The public already elected the judge so presumably they were fine with his views. If they really don't like his views, they can make sure they vote for other judges who won't latch onto the ruling for support. That's how democracy works.

Posted by: Elson | Jun 18, 2007 7:08:20 PM


I'll give you that I do not know for sure what the law in New Mexico is, but assuming the article Prof. Berman quoted above is accurate, read the last clause in the following sentence and you'll see that I did not just disagree with his conclusion, but based that disagreement on a (presumably correct) analysis of the law:

"The judge said that he would allow the death penalty trial to go ahead provided separate juries were selected for the guilt-innocence phase and for the sentencing phase, even though that change was not provided for under New Mexico law."

Posted by: Ben D | Jun 18, 2007 7:27:14 PM

And no, our democracy does not simply work by the people electing judges and then accepting their decisions and then getting rid of them if they do not like their actions or decisions. That's how the legislature works, but not the judiciary. But since you'd rather lob ad hominems, that's cool too, I guess.

Posted by: Ben D | Jun 18, 2007 7:30:33 PM

I swear I'll learn HTML one of these days.

Elson, here's New Mexico's capital punishment trial procedure statute - all emphasis is added:

ยง 31-20A-1. Capital felony; sentencing procedure

A. At the conclusion of all capital felony cases heard by jury, and after proper charge from the court and argument of counsel, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In nonjury capital felony cases, the judge shall first consider a finding of guilty or not guilty without any consideration of punishment.

B. Upon a verdict by the jury or judge that the defendant is guilty of a capital felony, or upon a plea of guilty to a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized herein. In a jury trial, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge before the original trial jury. In a nonjury trial the sentencing proceeding shall be conducted as soon as practicable by the original trial judge. In the case of a plea of guilty to a capital felony, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge or by a jury upon demand of a party.

C. In the sentencing proceeding, all evidence admitted at the trial shall be considered and additional evidence may be presented as to the circumstances of the crime and as to any aggravating or mitigating circumstances pursuant to Sections 6 and 7 of this act.

D. In a jury sentencing proceeding, the judge shall give appropriate instructions and allow arguments and the jury shall retire to determine the punishment to be imposed. In a nonjury sentencing proceeding, or upon a plea of guilty, where no jury has been demanded, the judge shall allow argument and determine the punishment to be imposed.


Now, as you can see under subsection B, New Mexico law does not allow for the seating of a separate trial jury and a penalty phase jury. This judge ignored the black-letter law and implemented his own policy decision based on a report issued by group with a veiled agenda (I say this because I spent several minutes clicking through their website, and while it's not overt, it's clear that the Capital Jury Project is ultimately anti-capital punishment). Unfortunately, the local prosecutor's office decided not to challenge the ruling. Whether this was due to pragmatics, principle, politics or none of the above, I do not know.

Posted by: Ben D | Jun 18, 2007 7:46:14 PM

The opinion is available at http://capitaldefenseweekly.com/library/TGarciaCJP.pdf.

Posted by: karl | Jun 18, 2007 9:07:00 PM

Large County:

read the opinion and save the polemics for the courtroom. The trial judge in issue made a simple decision -- as many other judges have done -- death qualification of a jury inherently taints the jury and in many cases unduly delays trials that will never reach the penalty phase because the jury returns a less than death eligible verdict.

Posted by: karl | Jun 18, 2007 9:11:00 PM

Karl, I certainly appreciate that trial judges make the best judgments they can based not only on the factual record before them but also on all relevant legal authority. This position, however, completely misses the point.

Changes to the capital sentencing scheme should come from the legislature. The judge based his decision on the testimony of a few experts (probably epidemiologists) and their research of post sentencing jurors. None of these jurors, moreover, ever sat on a death case in New Mexico. The judge simply relied on a comparison to sentencing schemes in other states, and presumed the answers from those post sentencing jurors would be the same in New Mexico. To call this reasoning tenuous would be generous at best. The opinion reads more like a record from a legislative subcomittee hearing rather than a reasoned legal opinion.

If these "experts" are so convinced of the veracity of their ideas, then why not present them before the people's elected representatives and let the chips fall where they may? In other words, let representative democracy work rather than forum shop for the one jurist who thinks the legislature is not equipped to address the issue. Judicial review is not a license to assume a mantle of superiority over other branches of government.

Posted by: Large County DDA | Jun 19, 2007 12:26:42 PM

I find it perplexing that the trial judge here says that he can fix a lot of the "problem areas" cited by the Capital Jury Project - such as not understanding the burden or proof at the sentencing phase or understanding the length of the non-death sentence - by adequately explaining these items and instructing the jury clearly -- somehow, though, instructing the jury clearly to not pre-judge the case is not sufficient. The whole opinion seems to stumble over itself in an effort to reach one, specific, certain result.

Posted by: JustClerk | Jun 19, 2007 12:59:34 PM

Is it legal to have obtained the court documents?

Posted by: Jill Good Carrillo | Jun 22, 2007 12:06:03 AM

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