File: Michael Astorga

Ever since Michael Astorga was arrested and charged with killing Deputy James McGrane, his trial has not even come close to beginning.

McGrane was shot and killed during a traffic stop in Tijeras three years ago.

Astorga was captured in Mexico two weeks later and has been sitting in prison ever since.

His attorney, Gary Mitchell, took his case to the state Supreme Court, arguing that a jury cannot deliberate fairly when it comes to a death sentence.

Astorga's case can't move on until the Supreme Court makes a decision. And that’s not expected for at least a couple of months.

Mitchell says Astorga's case, and others involving the death penalty, could move along if Bernalillo County District Attorney Kari Brandenburg tries for life sentences instead.

"I would expect her to know that the end result is those men will not face the death penalty and that we should go ahead and decide accordingly now so we can move ahead with the cases," Astorga’s attorney said.

Mitchell says since Governor Richardson repealed the state's death penalty, it's even less likely that Astorga would ever actually be put to death if he's found guilty.

Brandenburg says she knows that already, but she also says there's good reason to continue pursuing a death penalty for Astorga.

"What a life sentence in New Mexico up to this point is 30 years, basically for first degree homicide, so if he isn't given the death penalty, then he's looking at a 30-year sentence and the possibility that he will walk the streets again," Brandenburg said.

If Astorga is convicted and gets a life sentence, he'd only be eligible for parole after 30 years. It doesn't mean he would get out.

Astorga is not eligible for life without parole because the new law doesn't apply to him.