Updated: Wednesday, 07 Sep 2011, 1:13 PM MDT
Published : Monday, 29 Aug 2011, 10:12 PM MDT
ALBUQUERQUE (KRQE) - Cop killer Michael Astorga is in the fight for his life. Monday was the deadline for Astorga's attorney and the state to tell the State Supreme Court why or why not the death penalty should still be on the table at his sentencing next month.
Astorga's attorney claims the state is unfairly and illegally singling out his client. Now, the State Supreme Court will have to decide if it agrees.
Astorga has fought the death penalty for five years, since being captured in Mexico after murdering Bernalillo County Deputy James McGrane during a traffic stop.
In 2009 the state repealed the death penalty but only for crimes committed after the repeal. Since then Astorga's attorney, Gary Mitchell, has argued it should apply to Astorga too.
"(New Mexico is) the only state to have repealed the death penalty but still keep it in effect for those whose cases were pending at the time,” Mitchell said in an interview earlier this month.
In his argument to the Supreme Court, Mitchell took his fight to a new level. He claims Astorga is being unfairly targeted.
When the legislature did away with capital punishment, there were two men on death row and three more, including Astorga, who could possibly end up there. The repeal didn't affect the men who had already been sentenced, and Mitchell said the state made deals with the other two men to avoided execution.
Mitchell claims Astorga has been singled out by the state and even by powerful politicians who have called for his death.
Former Governor Bill Richardson, just one day after the death penalty was repealed, said, “I support the death penalty in the most heinous of cases, I think Astoria should go to the death penalty.”
Both sides are arguing a state statute saying if a penalty is reduced before a person is sentenced, then they should be sentenced under the new rules.
The state's argument to the Supreme Court claims this doesn't matter because the state made it clear when Astorga was arrested in 2006 that it would go for the death penalty. Therefore death was already on the table when the legislature repealed capital punishment.
Astorga is also fighting to be able to proclaim his innocence at sentencing. The state said he's been convicted, and his sentencing should only be about life or death.
The State Supreme Court will hear from both sides Thursday in Santa Fe. News 13 will be there.