Lawyers for the last two men on New Mexico’s death row told the state Supreme Court their sentences should be vacated because the state no longer believes in executing its worst criminals.

The lawyers on Tuesday argued that even if the justices determine that Robert Fry and Timothy Allen — both convicted before legislators repealed the death penalty in 2009 — are still subject to the law, the court should change the method it has used since the 1980s for determining if the penalty has been fairly applied.

Fry was sentenced to death in 2002 for the murder of 36-year-old Betty Lee of Shiprock. He’s also serving life sentences for the 1996 killings of Farmington residents Joseph Fleming, 25, and Matthew Trecker, 18, and the 1998 murder of 41-year-old Donald Tsosie of Ganado, Ariz.

Allen has been on death row since 1995 for the kidnapping, attempted rape and murder Sandra Phillips, 17, of Flora Vista in San Juan County.

State law requires the Supreme Court to review all death penalty cases to determine if the sentence is “excessive or disproportionate to the penalty imposed in similar cases.”

The justices, who listened to arguments for two hours, did not immediately rule on whether the prisoners’ lives would be spared. A decision could take months.

The current method for review calls for the court to compare only cases “under the same aggravating circumstances” as the one being reviewed; those in which the defendant was convicted and sentenced to death or life in prison; those upheld on appeal.

Fry’s lawyer, Kathleen McGarry, argued that narrow scope unfairly skews the results of a comparative review.

It would be more fair, McGarry said, for the court to expand the “universe” of cases it considers for comparison purposes. She added the court should consider not just cases involving a similar crime, but those that involve comparable mitigating circumstances.

Doing that, she argued, would comply more fully with state statute which requires consideration of “both the crime and the defendant.”

Assistant Attorney General Victoria Wilson argued there is no reason to change the methods adopted in 1983, saying if the legislature had believed the methodology for comparing cases was flawed, lawmakers would have raised the issue in intervening years.

Furthermore, she argued, the true test of whether the death penalty imposed in any particular case was “arbitrary or capricious” should be made by examining the facts of the case.

Wilson acknowledged, in response to a question from Justice Charles Daniels, that under the current narrow scope of comparisons, there had never been a determination the death penalty was being applied disproportionately.

More than 200 cases that could have resulted in a death penalty sentence were filed between the years of 1979 and 2009 when seeking the death penalty was an option for state prosecutors. But only 15 of those resulted in death sentences — and only one of those resulted in an execution.

Terry Clark was put to death in 2001 for the 1986 rape and murder of Dena Lynn Gore, a 9-year-old Artesia girl. But court documents often refer to Clark’s execution as “voluntary” because he stopped fighting his execution before exhausting available appeals.

Lawyers for Fry and Allen argued in briefs to the Supreme Court that public opinion polls show the death penalty has steadily fallen out of favor with New Mexicans over the years.

During a 2016 special legislative session the state House of Representatives approved a bill backed by Gov. Susana Martinez which would have reinstated the death penalty for select cases. But the Senate never considered the measure.

If the court strikes down the death sentences, Fry and Allen likely would serve terms of life in prison without the possibility of parole. If the sentences are upheld, their cases could be stuck in the appeals process for years.

Contact Phaedra Haywood at 986-3068 or Follow her on Twitter at @phaedraann.

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