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.