Color of Death
Death penalty usually sought for people of color
Gary Mitchell, left, listens Sundy as Kimberly Ross-Toledo, the director of the Coalition for Healthy and Resilient Youth, shares her views during a panel discussion about the death penalty in New Mexico, held at First United Methodist Church on Red Rock Drive in Gallup. The discussion followed the showing of the documentary film "Race to Execution.

By Karen Francis
Staff writer

GALLUP — After the death penalty was reinstated in 1976 by the U.S. Supreme Court, New Mexico Gov. Toney Anaya was the first to commute the sentences of all death row inmates to life in prison, which he did for five people in 1986.

Today there are two men who are on death row in the state — a small number out of the nationwide figure of 3,350. One is serial-killer Bobby Fry of Farmington, who was sentence to death for the murder of Betty Lee, a Navajo woman who lived in Shiprock. Fry was also convicted in three other Farmington-area murders, including the infamous Eclectic double homicide.

“The people of New Mexico have never favored the death penalty,” Gary Mitchell, a defense attorney known for his work on death penalty cases, said.

Mitchell joined in a discussion with Gallup community members during a presentation on the death penalty on Sunday at the First United Methodist Church. The presentation, called “Deadly Injustice: A Discussion on Race and Punishment,” included a screening of Rachel Lyon’s documentary “Race to Execution” and a panel discussion with Mitchell, Gallup Chapter of the National Association for the Advancement of Colored People Chairwoman Mona Frazier and Kimberly Ross-Toledo, director of Coalition for Healthy and Resilient Youth.

As revealed by the documentary, the face of the person on death row is most often a dark one. Statistics indicate that the death penalty is more often sought when the victim is white and the defendant is a person of color than in other situations.

Even though national statistics show that race plays a factor in death penalty cases, Mitchell said that New Mexico has always been different.

“It is truly, when it comes to talk about death penalty work, the land of enchantment,” he said.

Mitchell added, “It is extremely difficult to get 12 people to agree on the death penalty in this state.”

However, he said that the issues in the documentary are also issues that have been dealt with in New Mexico.

Mitchell told about a recent case in Portales, where prosecutors chose not to seek the death penalty for the white defendant, Jerry Fuller, in the case of the 2005 killing of an elderly couple, but decided to seek the death penalty for the black defendant, Stanley Bedford.

“That case more than any in a number of years brought to the forefront that there are still people in New Mexico, particularly prosecutors, that will elect to do something from a very racist point of view,” Mitchell said.

The documentary explored two cases that sought the death penalty — those of Robert Tarver in Alabama and Madison Hobley in Chicago, Ill. Both were black men who were accused of murder based on questionable evidence.

What surprised a few people in the audience about the Tarver case was the fact that Tarver’s defense attorney was a friend of the victim. Even though the jury recommended a life sentence without the possibility of parole, Tarver was eventually put to death for the murder of Hugh Kite, a well-known white store owner.

In Hobley’s case, he was exonerated following many appeals and years on death row after the Chicago Tribune exposed racism in the police department and then-Governor of Illinois George Ryan commuted the sentences of 13 people on death row and issued a moratorium on the state’s death penalty. Hobley had been charged with arson and the murder of seven people including his wife and child when he was able to escape from the burning building where they had lived.

One of the problems illustrated by the documentary was in the composition of juries, which is often made of white people. In both the Tarver and Hobley cases, the respective juries that found them guilty were composed of 11 whites and one African American.

The same problem was expounded on by Mitchell who noted that those who are against the death penalty or those who do not believe the death penalty should apply in the specific case are immediately eliminated from the jury pool. Minorities are also eliminated by prosecutors because they are often more distrustful of law enforcement and the court systems than white people, and thus are less likely to issue a death sentence.

“In fact, I cannot think of a single death penalty case in which a single African American in the state of New Mexico sat on that death penalty jury,” Mitchell said.

The documentary said that when the majority of jurors are white males, a death sentence is far more likely.

Andrea Lyon was one of the attorneys working on the Tarver case. In the documentary she said, “We execute the poorest of the poor ... people who have bad lawyers, the people least able to defend themselves.”

While New Mexico is known for being a state of diverse peoples, it is not exempt from modern problems of racism, the panelists said.

“We’re still fighting racism,” Frazier said.

Both Frazier and Ross-Toledo said that the information presented in the documentary was not surprising.

Ross-Toledo spoke about how people of color expect unfairness from the court system and law enforcement from cases as small as a traffic stop all the way up to death penalty cases.

She added that the racism in New Mexico is more subtle than in other states and that it is perpetuated in many ways.