Death penalty rarely holds up against appeals

The 9th Judicial District Attorney’s office announced Tuesday prosecutors will seek the death penalty against Jerry Fuller and Stanley Bedford, who are accused of kidnapping and killing an elderly Portales couple earlier this year.

The chances the two Portales men will actually be executed if convicted is low, officials with the attorney general’s office said last week. That’s because seeking the death penalty in New Mexico is a long process, full of pitfalls and appeals.

“It’s not for lack of trying by the prosecutors,” said Victoria Wilson, state assistant attorney general in the criminal appeals division. “At each step along the way, there is the opportunity for someone to change it.”

District Attorney Matthew Chandler said he arrived at the decision to seek the death penalty against Fuller and Bedford after careful consideration of the evidence and consulting with law enforcement officials.

Fuller and Bedford are accused of kidnapping Odis and Doris Newman from their Portales home, stuffing them in a car trunk, and then setting the vehicle on fire.

“Anytime someone commits a crime where we believe there is sufficient evidence of aggravated circumstances ... we will seek the death penalty,” Chandler said.

To seek the death penalty in New Mexico, there must be aggravated circumstances that accompany the slaying, according to state law. If the homicide was perpetrated in the commission of another crime — a kidnapping, sex crime, or to prevent a witness from contacting authorities — or if it happened in a corrections facility or occurred to a peace officer, the state can seek death.

Besides being extremely difficult to have a death sentence upheld, the death penalty itself is under attack from state advocacy groups and legislators.

“I’m unequivocally opposed to the death penalty — on moral grounds and practical grounds,” said Kathleen MacRae, coordinator of the New Mexico Coalition to Repeal the Death Penalty, a group with about 3,000 members, she said. “Killing is wrong. It doesn’t matter if the murderer does it or the state does it.”

She said her group educates the public about the death penalty and advocates public policy change.

“I think a lot of people feel that it is cruel and unusual punishment,” she said. “If you’re a regular church-goer, chances are you do not support the death penalty.”

The coalition has teamed up with legislators to try to get the death penalty repealed. In the Legislative session earlier this year, a house bill sponsored by Rep. Gail C. Beam, D-Bernalillo, was introduced to repeal the death penalty and replace it with life in prison without a chance for parole. The bill passed the House but was defeated in a Senate committee.

Whether such a bill would ever be signed by Gov. Bill Richardson is another question. Bill Richardson supports the death penalty, according to a spokeswoman from his office.

“The governor believes that the death penalty is justified for violent criminals who commit the most heinous crimes,” Marsha Catron wrote in an e-mail. “But the governor always wants to ensure that each defendant receives qualified and competent legal counsel, and all proper safeguards, such as DNA testing, are available.”

MacRae conceded about 60 percent of New Mexicans said they support the death penalty in a poll commissioned by her group, which roughly matches the national average. However, when alternatives are presented, she said New Mexicans tend to favor softer penalties, the poll showed.

She said about 53 percent favor replacing the death penalty with life in prison without the possibility of parole, and nearly two-thirds would favor replacing the death penalty with life without parole when restitution is given to the victims’ families.

New Mexico currently has two men on death row, and the state has only executed one person since 1960, Terry Clark, according to Amnesty International. When Clark was executed in 2001, it was after 15 years of appeals. He was convicted of killing 9-year-old Dena Lynn Gore in 1986, according to Amnesty International.

Prosecuting a death penalty case may take only a few weeks or months in court, but the appeals process can last many years, officials said.

Since so many people decide on a case before the appeals process ends, officials say, that leads to a low rate of executions compared to death penalty cases tried by the state.

If a jury finds that death is the appropriate sentence, an immediate and mandatory appeal goes straight to the New Mexico Supreme Court, Wilson said. The last death penalty case in the 9th Judicial District was for Michael Treadway, who was convicted of killing Texico resident Everett Clint “Red” Prather in 1997.

His death sentence was later overturned in favor of life in prison.

Other reasons for appeal include the sentence being imposed in an unconstitutional manner and ineffective assistance of counsel.

“It’s obviously an uphill battle for the state,” Wilson said.

Santa Fe attorney Jeffrey P. Jones, who represents Fuller, said he is personally opposed to the death penalty.

“I think there is an emotional toll on everybody,” he said, “I think everyone is keenly aware that the stakes are much higher in this kind of case, and it takes its toll.”