- Associated Press - Wednesday, September 3, 2014

SANTA FE, N.M. (AP) - New Mexico’s remaining death row inmates are asking the state’s highest court to spare them from potential execution because lawmakers repealed capital punishment after they were sentenced to die by lethal injection.

Timothy Allen and Robert Fry contend their death sentences violate state and federal constitutional protections because New Mexico abolished capital punishment in 2009 for future murders but left it in place for them. Both men were convicted and sentenced to death for murders committed years before the repeal.

The state Supreme Court will hear arguments from lawyers Oct. 1, but a decision by the five justices likely wouldn’t be made until months later.

No execution has been scheduled for either Fry or Allen, and both have pending habeas corpus post-conviction appeals in state district court. The Supreme Court has previously upheld their convictions and sentences.

Attorney General Gary King, representing the state, contends the death sentences for Fry and Allen are constitutional and should remain in place.

The Legislature’s decision to apply the repeal to future murders “furthers the long-standing policy of ensuring that criminals are punished according to the law that existed at the time of their crimes,” Assistant Attorney General M. Victoria Wilson said in written arguments to the court.

A group of University of New Mexico law professors and the New Mexico Criminal Defense Lawyers Association is supporting the latest legal challenge brought by attorneys for Fry and Allen.

“These capital sentences are political vestiges of an abolished state system of death. New Mexico has no compelling interest distinguishing Mr. Allen and Mr. Fry from future defendants who will escape execution because of repeal,” the defense attorneys’ group said in written arguments submitted to the court.

Fry, the last person sentenced to death in New Mexico, was convicted of killing Betty Lee in 2000. 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 in northwestern New Mexico in 1994. He also was convicted of the kidnapping and attempted rape of the Flora Vista teenager.

New Mexico’s repeal of the death penalty took effect on July 1, 2009, and it applied to crimes committed after that date. Lethal injection was replaced with a sentence of life in prison without the possibility of parole.

Then Gov. Bill Richardson didn’t commute the death sentences of Fry and Allen. At the time of the repeal, one potential death-penalty case was pending. Michael Astorga was later sentenced to life in prison for murdering a Bernalillo County sheriff’s deputy in 2006.

Lawyers for Fry and Allen contend that their clients’ death sentences, in light of the 2009 repeal, violate state and federal constitutional provisions against cruel and unusual punishment and equal-protection guarantees.

“Executing Mr. Fry but not other members of the same class of offenders based only on a date is arbitrary and freakish” and violates the state constitution, Fry’s lawyer, Kathleen McGarry, said in written arguments.

She said Wednesday in a telephone interview that Connecticut’s highest court is considering a similar legal challenge involving death-row inmates sentenced before that state abolished the death penalty in 2012.

New Mexico’s last execution was in 2001. Child-killer Terry Clark’s execution was the first in the state in 41 years.


Follow Barry Massey at https://twitter.com/bmasseyAP .

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