Appeals Court Questions Federal Use of Death Penalty Against Navajo Prisoner, But Turns Down Appeal

In a fed­er­al cap­i­tal case with impli­ca­tions relat­ing to trib­al sov­er­eign­ty, a fed­er­al appeals court has denied a Native-American prisoner’s appeal seek­ing to inves­ti­gate racial bias in his case, while ques­tion­ing the fed­er­al government’s pur­suit of the death penal­ty against him. 

On May 1, 2020, a three-judge pan­el of the U.S. Court of Appeals for the Ninth Circuit denied Lezmond Mitchell’s request to re-open his habeas cor­pus chal­lenge to his con­vic­tion and death sen­tence based on a 2017 U.S. Supreme Court rul­ing that state­ments by jurors that their ver­dict was influ­enced by racial stereo­types or ani­mus were admis­si­ble to chal­lenge the con­sti­tu­tion­al­i­ty of a defendant’s con­vic­tion. Mitchell, a Navajo pris­on­er sen­tenced to death for an intra-trib­al mur­der on trib­al land in Arizona, had been pre­vent­ed from inves­ti­gat­ing racial bias in his 2003 tri­al by an Arizona law that barred defen­dants from interviewing jurors. 

In an extra­or­di­nary set of con­cur­ring opin­ions, Judge Morgan Christen and Judge Andrew Hurwitz expressed grave con­cerns about the con­duct of the Department of Justice in over­rid­ing trib­al sov­er­eign­ty and attempt­ing to car­ry out the death penal­ty against Mitchell in the face of oppo­si­tion from the Navajo Nation — of which he is a mem­ber — the vic­tims’ fam­i­ly, and local federal prosecutors. 

Under the fed­er­al Major Crimes Act, intra-trib­al mur­der com­mit­ted on trib­al land is not sub­ject to cap­i­tal pros­e­cu­tion unless the affect­ed tribe has opt­ed in to the law’s death-penal­ty pro­vi­sions. The Navajo Nation has not done so. However, the fed­er­al death penal­ty was expand­ed in 1994 to per­mit the gov­ern­ment to pur­sue the death penal­ty out­side of the Major Crimes Act, includ­ing in cas­es of car­jack­ing result­ing in death. When Mitchell was tried, he could not receive a death sen­tence for mur­der, but he could, and did, for carjacking.

“It is worth paus­ing to con­sid­er why Mitchell faces the prospect of being the first per­son to be exe­cut­ed by the fed­er­al gov­ern­ment for an intra-Indian crime, com­mit­ted in Indian Country, by virtue of a car­jack­ing result­ing in death,” Judge Christen wrote. ​“Navajo ​‘cul­ture and reli­gion teach­es us to val­ue life and instruct against the tak­ing of human life for vengeance.’” While acknowl­edg­ing that fed­er­al law gave the gov­ern­ment dis­cre­tion to cap­i­tal­ly pros­e­cute the case, Christen said “[t]he impo­si­tion of the death penal­ty in this case is a betray­al of a promise made to the Navajo Nation, and it demon­strates a deep dis­re­spect for trib­al sov­er­eign­ty. People can dis­agree about whether the death penal­ty should ever be imposed, but our his­to­ry shows that the United States gave tribes the option to decide for themselves.”

In a sec­ond con­cur­ring opin­ion, Judge Andrew Hurwitz ques­tioned the government’s delib­er­ate indif­fer­ence to the views of the Navajo Nation and the vic­tims’ fam­i­ly. He also not­ed that local fed­er­al pros­e­cu­tors had elect­ed not to seek the death penal­ty, but the Attorney General over­rode that deci­sion. Hurwitz urged the fed­er­al gov­ern­ment to recon­sid­er, writ­ing, ​“that the gov­ern­ment had the right to make this deci­sion does not nec­es­sar­i­ly make it right, and I respect­ful­ly sug­gest that the cur­rent Executive should take a fresh look at the wis­dom of impos­ing the death penalty.”

In a state­ment, Mitchell’s attor­neys Jonathan Aminoff and Celeste Bacchi, wrote, ​“Judges Christen and Hurwitz point to the pro­found unfair­ness of Mr. Mitchell’s death sen­tence, imposed for an entire­ly intra-trib­al crime over the oppo­si­tion of the Navajo Nation, mem­bers of the vic­tims’ fam­i­ly, and the local pros­e­cu­tors. We agree with Judge Christen’s con­clu­sion that the United States made an express promise to the Native American peo­ple that they would not seek the death penal­ty against a trib­al mem­ber for an intra-Indian crime com­mit­ted in Indian Country, and then broke that promise by this pros­e­cu­tion. We will con­tin­ue to pur­sue all avail­able avenues of relief for Mr. Mitchell from his uncon­sti­tu­tion­al con­vic­tions and death sentence.”

The major­i­ty opin­ion in the case focused on Mitchell’s request to inter­view jurors regard­ing racial bias. In 2017, the U.S. Supreme Court ruled in Peña‑Rodriguez v. Colorado that the Sixth Amendment right to tri­al by an impar­tial jury super­seded state pro­ce­dur­al rules pro­hibit­ing the admis­sion of state­ments by jurors that their ver­dict was influ­enced by racial stereo­types or ani­mus. Mitchell’s request to inter­view jurors cit­ed pros­e­cu­to­r­i­al bias in the charg­ing deci­sion, the exclu­sion of Native American prospec­tive jurors, and a clos­ing argu­ment that ​“was rid­dled with com­ment” dis­parag­ing Mitchell’s ​“reli­gious beliefs and Navajo culture.” 

The court held that, although Peña‑Rodriguez ​“estab­lished a new excep­tion” to the rule that ​“gen­er­al­ly pro­hibits jurors from tes­ti­fy­ing regard­ing their delib­er­a­tions, this change in law left untouched the law gov­ern­ing inves­ti­gat­ing and inter­view­ing jurors and thus did not give rise to ​‘extra­or­di­nary cir­cum­stances’” that would allow Mitchell to inves­ti­gate whether his case had been taint­ed by racial animus. 

“The Ninth Circuit’s deci­sion puts pris­on­ers like Lezmond Mitchell in an impos­si­ble posi­tion,” his lawyers said. ​“Although the Supreme Court has held that racial bias in jury delib­er­a­tions ren­ders a tri­al fun­da­men­tal­ly unfair, Mr. Mitchell has been barred from inves­ti­gat­ing whether his jury was taint­ed by racial bias.” 

Mitchell was one of five fed­er­al death-row pris­on­ers for whom exe­cu­tion dates were set in July 2019, but his exe­cu­tion was stayed to allow for con­sid­er­a­tion of this appeal.