By Elise Kaplan and Dan Boyd
Albuquerque Journal
SANTA FE, N.M. — It’s been 10 years since New Mexico repealed the death penalty, but up until Friday the state still had two inmates on death row.
That changed when a divided New Mexico Supreme Court vacated the death sentences of Timothy Allen, 55, and Robert Fry, 45, ruling that state-sanctioned execution would be unjust since other criminals convicted of similar crimes faced different punishment.
The cases of Allen and Fry — who were both facing execution in separate murder cases out of San Juan County — will now be sent back to state District Court there for sentences of life imprisonment. They are both already serving life sentences on other charges.
“This isn’t a ‘walk out of prison free’ card,” said Kathleen McGarry, Fry’s attorney. “This is ‘instead of being executed we’re going to let you spend your life in prison.’”
Allen was convicted in the killing and attempted rape of a 17-year-old girl who accepted a ride from him and Fry was convicted of the killing and attempted rape of a mother of five, who had become stranded at a convenience store.
Allen’s attorney said she talked to him Friday afternoon and he was “stunned” and “almost speechless” to hear the court’s decision.
However, Melissa Hill said, while this wraps up a major part of the case, her client had an appeal on a separate issue pending when it was sent to the Supreme Court.
“There remains a possibility of proceedings in the district court to determine whether or not Mr. Allen received an effective counsel at the guilt phase of the trial,” Hill said.
Both Allen and Fry are locked up in the Penitentiary of New Mexico in Santa Fe, which houses the state’s highest-security inmates.
The Supreme Court was split 3-2 in its Friday ruling, as retired Justices Edward Chávez and Charles Daniels — who were both sitting by designation — agreed with the majority opinion written by Justice Barbara Vigil.
Each wrote their own concurring opinions.
Chief Justice Judith Nakamura wrote the dissenting opinion and retired Justice Petra Jimenez Maes joined in the dissent.
Chávez, Daniels and Maes all retired last year but remained on the case because they were on the bench when Allen and Fry brought their challenges to the Supreme Court more than five years ago and had attended all the prior hearings.
In the majority opinion,Vigil wrote the court had concluded that the death sentences “were invalid under statutory safeguards established by the Legislature for death penalty cases,” according to the Adminstrative Office of the Courts.
The question at the heart of the case was whether a death sentence for Allen and Fry is a disproportionate punishment in relation to the punishment other defendants received for similar crimes.
“In comparing petitioners’ cases to other equally horrendous cases in which defendants were not sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen,” Vigil wrote. “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases.”
In her dissenting opinion, Nakamura wrote that she believes the majority opinion “misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico.”
She wrote that she disagreed with the way the majority opinion interpreted the legislative command that the death sentences are not “disproportionate to the penalty imposed in similar cases.”
“They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico,” she wrote. “I respectfully contend that the majority’s judgment is error.”
The cases
In 1994, Allen spotted 17-year-old Sandra Philips, who was walking to do an errand in northwestern New Mexico town.
She got into his truck and was missing for six weeks before a sheepherder found her body roughly three miles north of Flora Vista, between Farmington and Aztec. She was partially undressed, had a rope around her neck and was believed to have been sexually assaulted.
Allen was convicted of kidnapping, attempted rape and first-degree murder in late 1995 and sentenced to death.
In 2000, Fry and an accomplice ran into Betty Lee, a woman in her 30s who was the mother of five, stranded at a convenience store. They offered her a ride home and she accepted.
Some time later, Lee realized something was not right and tried to escape.
In a struggle, Fry ended up stabbing her in the chest and pulling off her clothes. She ran away and tried to hide but Fry hit her over the head with a sledgehammer, killing her. Her body was found the next morning.
Fry was convicted of kidnapping, attempted rape, evidence tampering and murder in that case and sentenced to death.
Fry was convicted of three other slayings in San Juan County in the late 1990s and received three life sentences.
In the following years, the Supreme Court had denied both Fry’s and Allen’s direct appeals and upheld their convictions and death sentences.
One executed this century
Before abolishing the death penalty, New Mexico had executed just one inmate since 1960. That happened in 2001, when Terry Clark received a lethal injection after having been convicted of raping and killing Dena Lynn Gore, a 9-year-old Artesia girl.
And between 1979 and 2007, juries imposed the death sentence in 15 cases — 12 of which were later vacated. Seven were reversed during a direct appeal or post-conviction proceedings and five others were commuted in 1986 by then-Gov. Toney Anaya, according to the Administrative Office of the Courts. One inmate died in prison on death row.
After a lengthy crusade by anti-death penalty advocates, then-Gov. Bill Richardson signed legislation in 2009 repealing capital punishment and replacing it with a maximum sentence of life in prison without the possibility of parole.
Richardson, a Democrat, said at the time he signed the repeal bill into law that he did not have enough confidence in the criminal justice system to be the final arbiter of who lived and who died.
However, the repeal applied only to crimes committed after its effective date, and Fry and Allen remained on death row in New Mexico.
In 2013, Fry and Allen, who both had post-conviction appeals pending in San Juan County, took their cases to the state Supreme Court.
“The question we presented to the court was whether or not New Mexico could execute Mr. Fry and Mr. Allen since they had chosen to repeal the death penalty,” McGarry said. “We argued a lot of constitutional issues about why they shouldn’t be allowed to do that.”
She said the attorneys were also asked to “address the proportionality issue, which is what they ended up reversing this case on.”
Nationwide, there has been a movement away from the death penalty in recent years and 21 states now bar capital punishment, according to the National Conference of State Legislatures.
In addition to New Mexico, other states abolishing the death penalty in recent years include Illinois, Connecticut, Maryland and New Hampshire.
Former Gov. Susana Martinez, a Republican who left office at the end of last year, pushed unsuccessfully during the final years of her tenure to reinstate the death penalty for those convicted of killing law enforcement officers, corrections officers and minors.
©2019 the Albuquerque Journal (Albuquerque, N.M.)