Execution scheduled for Arizona man, who is the only Native American on federal death row
An Arizona man, who is the only Native American on federal death row, is scheduled to be executed next month, although appeals court judges asked the U.S. Department of Justice to consider the Navajo Nation's opposition to capital punishment.
Lezmond Mitchell, 38, is scheduled to be executed by lethal injection on Aug. 26, according to a letter his lawyers provided from the Federal Correctional Complex warden in Terre Haute, Indiana.
Mitchell was convicted in 2003 of carjacking and the murders of Alyce Slim, 63, and her 9-year-old granddaughter, Tiffany Lee. Slim and Lee also were citizens of the Navajo Nation.
The federal government has executed three men since resuming executions on July 14 after a 17-year hiatus. Another execution is scheduled two days after Mitchell's.
Mitchell was scheduled to be executed in 2019. Then the U.S. Court of Appeals for the 9th Circuit put the execution on hold after his lawyers raised concerns of potential racial bias by the jury that heard his case.
The appeals court issued a decision in April saying Mitchell failed to showed any discrimination occurred among the jury.
The Navajo Nation is against the death penalty.
Johnathan Aminoff and Celeste Bacchi, Mitchell's lawyers, said in a statement that the federal government's announcement of a new execution date demonstrates disrespect for the Navajo Nation's values and sovereignty.
"In what the Ninth Circuit Court of Appeals referred to as a 'betrayal of a promise made to the Navajo Nation,' the Department of Justice exploited a legal loophole and sought the death penalty against Mr. Mitchell for the federal crime of carjacking over the objection of the Navajo Nation, the victims’ family, and the local United States Attorney’s Office."
Case dates back nearly 20 years
On Oct. 28, 2001, Mitchell and a teenager, Johnny Orsinger, traveled from Round Rock, Arizona, to Gallup, New Mexico. Mitchell was preparing for an armed robbery, according to court records.
The two hitchhiked back to the Navajo reservation.
Slim and her granddaughter had traveled in her truck to Tohatchi, New Mexico, to see a traditional medicine person for leg ailments and then on to Twin Lakes, New Mexico. At some point on the trip, Mitchell and Orsinger got into Slim's truck.
Slim stopped near Sawmill, Arizona, to let the men out, but they stabbed her 33 times. They made the child sit next to her grandmother's body, and Mitchell drove to the mountains before ordering the girl out of the truck.
According to court records, Mitchell cut the child's throat and, when she did not die, Orsinger used rocks to kill her.
A few days later on Oct. 31, 2001, Mitchell was involved in a robbery of a trading post on the Navajo reservation. He was convicted of robbery and firearm violations.
A store manager was mopping the floor when she was assaulted by one of the men. Another employee was pushed against the counters when she tried to hide. The employees were tied up in the vault room after the men took $5,530 and a purse.
Mitchell was convicted of carjacking resulting in death, murder, robbery and kidnapping. Since Orsinger was a juvenile, he was ineligible for the death penalty. He pleaded guilty and was sentenced to life in prison.
Judges ask U.S. to reflect on actions
Mitchell's lawyers argued in 2009 his former attorneys were not allowed to interview the original jurors, which prevented them from learning whether Mitchell truly got a jury of his peers.
"Mitchell was ultimately tried before a jury with only one Native American member regarding crimes committed on Native American land with Native American victims," his attorneys wrote in the motion.
They argued there were "racial undertones" in the case, and Mitchell should have been allowed to investigate whether racial bias played a role in his conviction and sentence.
On Wednesday, his lawyers said Congress made a commitment, with the Federal Death Penalty Act, to Native Americans that they would not be subjected to the death penalty for a crime committed against another Native American on Native American land unless the tribe consented.
Even though the 9th Circuit allowed the federal government to proceed with Mitchell's execution, two of the judges wrote concurring opinions highlighting the Navajo Nation's beliefs.
According to Judge Morgan Christen, the decision to seek the death penalty was not only made against the wishes of the Navajo Nation and several members of the victims' family, but also the U.S. Attorney for the District of Arizona.
She wrote the United States could not seek the death penalty for the murders. However, the penalty was allowed for carjacking and the tribe's consent wasn't needed for the crime since it is considered "a crime of nationwide applicability," the judge stated.
"I write to underscore only that the United States made an express commitment to tribal sovereignty when it enacted the tribal option, and by seeking the death penalty in this case, the United States walked away from that commitment," Christen wrote.
Judge Andrew Hurwitz wrote that even though the federal government had the legal right to make the decision to pursue the death penalty, it does not "necessarily make it right."
He asked the federal government to "take a fresh look at the wisdom of imposing the death penalty."
"When the sovereign nation upon whose territory the crime took place opposes capital punishment of a tribal member whose victims were also tribal members because it conflicts with that nation’s 'culture and religion,' a proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it," he wrote.
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