Stay of Execution Granted for Sole Native American on Federal Death Row

A three-judge pan­el of the U.S. Court of Appeals for the Ninth Circuit has grant­ed a stay of exe­cu­tion for fed­er­al death row pris­on­er Lezmond Mitchell to pre­vent the U.S. gov­ern­ment from exe­cut­ing him before the court can review an on-going appeal con­cern­ing pos­si­ble anti-Native American bias in his case. Mitchell, who was sched­uled to be exe­cut­ed on December 11, 2019, is a mem­ber of the Navajo Nation and the only Native American on fed­er­al death row. His case is one of sev­er­al in the past year high­light­ing the ten­sion between trib­al sov­er­eign­ty and the pur­suit of the death penal­ty by state and federal officials.

When the Department of Justice announced in July its inten­tion to exe­cute Mitchell and four oth­er fed­er­al death-row pris­on­ers in a five-week span from December 9, 2019 through January 15, 2020, it false­ly claimed that the pris­on­ers had all exhaust­ed their appeals and that it was car­ry­ing out the exe­cu­tions to advance the inter­ests of the vic­tims’ fam­i­lies. In fact, although Mitchell’s ini­tial appeals had been denied, he was in the midst of lit­i­ga­tion in the fed­er­al courts and had been grant­ed a ​“cer­tifi­cate of appeal­a­bil­i­ty,” mean­ing that the courts con­sid­ered the issues he raised to be wor­thy of fur­ther judi­cial review. Both the Navajo Nation and the vic­tims’ fam­i­ly told fed­er­al pros­e­cu­tors at the time of tri­al that they opposed the gov­ern­ment seek­ing the death penal­ty in the case. 

Mitchell’s attor­neys argued that his sched­uled exe­cu­tion would inter­fere with con­tin­u­ing legal chal­lenges to the con­sti­tu­tion­al­i­ty of his death sen­tence. They asked ​“for a stay of exe­cu­tion such that he may lit­i­gate his appeal [con­cern­ing anti-Native American bias] to con­clu­sion.” A split pan­el of the fed­er­al appeals court vot­ed 2 – 1 on October 4 to grant the stay so that brief­ing could be com­plet­ed in the case and sched­uled argu­ment on the appeal for December 13. 

In 2017, the U.S. Supreme Court ruled in Pena-Rodriguez v. Colorado 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’s lawyers sought to inter­view jurors about poten­tial racial bias in his case, cit­ing 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 dis­trict court refused to per­mit Mitchell to talk to jurors, rely­ing on an Arizona pro­ce­dur­al rule bar­ring juror inter­views. Mitchell then asked the Ninth Circuit for per­mis­sion to appeal. On April 25, the Ninth Circuit found that he had pre­sent­ed suf­fi­cient basis for appeal and set a brief­ing sched­ule for the case. Notwithstanding this rul­ing, Attorney General Barr announced Mitchell’s exe­cu­tion date on July 25. 

Mitchell was sen­tenced to death for the 2001 mur­ders of Alyce Slim and her nine-year-old grand­daugh­ter on Navajo lands in Arizona. Mitchell was arrest­ed on a trib­al war­rant and ini­tial­ly held in a Navajo jail. During this time peri­od, he was not appoint­ed a lawyer, but he was ques­tioned repeat­ed­ly by FBI agents and even­tu­al­ly con­fessed to the crimes. 

Before Mitchell’s tri­al, Navajo Nation offi­cials wrote a let­ter to the fed­er­al pros­e­cu­tor explain­ing that they opposed the death penal­ty for Mitchell and that the ​“the tak­ing of human life for vengeance” is counter to Navajo cul­ture and reli­gion. Slim’s daugh­ter and the moth­er of the deceased nine-year-old also opposed the pros­e­cu­tion seek­ing the death penal­ty. The pros­e­cu­tor assigned to the case rec­om­mend­ed to the United States Department of Justice that the case be tried non-cap­i­tal­ly. However, Attorney General John Ashcroft dis­re­gard­ed these opin­ions and ordered the pros­e­cu­tor to seek the death penal­ty. In a dis­sent from a pri­or Ninth Circuit rul­ing in the case, Judge Stephen Reinhardt not­ed that pri­or to this case, the fed­er­al gov­ern­ment had nev­er exe­cut­ed any Native American for an ​“intra-Indian crime that occurred in Indian Country.” 

In November 2018, fed­er­al pros­e­cu­tors in New Mexico with­drew their notice of intent to seek the death penal­ty against Kirby Cleveland in the killing of a trib­al police offi­cer after Navajo Nation Attorney General Ethel Branch wrote to pros­e­cu­tors reit­er­at­ing the tribe’s oppo­si­tion to the death penal­ty. In Patrick Murphy’s death-penal­ty case in Oklahoma, the Supreme Court will review a fed­er­al appeals court deci­sion that state pros­e­cu­tors lacked juris­dic­tion to pros­e­cute Murphy — a mem­ber of the Muskogee (Creek) Nation — because the mur­der occurred on Indian lands with­in the bor­ders of the Creek Reservation.