Sole Native American on Federal Death Row Seeks Justices’ Help

The only Native American on federal death row is asking the U.S. Supreme Court to intervene before he becomes at least the fourth federal inmate executed in 2020 following a 17-year hiatus.

Lezmond Mitchell, a member of the Navajo nation, is set to be executed Aug. 26.

He’s asking the court to allow him to interview the jurors who heard his case to determine if any of them were racially biased during his conviction and death sentence relating to a 2001 carjacking that ended in the murder of a 63-year-old woman and her 9-year-old granddaughter. Both also were members of the Navajo Nation. The jury was made up of 11 whites and one Navajo.

Although rejecting Mitchell’s bid to investigate racial bias, two of the three judges to consider his appeal below asked the Justice Department to reconsider its decision to seek the death penalty over the objection of the Navajo Nation.

“In my view, 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 conviction for carjacking resulting in death,” wrote U.S. Court of Appeals for the Ninth Circuit Judge Morgan Christen in her concurrence.

“I respectfully suggest that the current Executive should take a fresh look at the wisdom of imposing the death penalty,” Judge Andrew D. Hurwitz added.

A clemency petition is currently pending, urging the Trump administration to reconsider. The DOJ didn’t immediately respond to a request for comment.

‘Wholesale Speculation’

The issue for the Supreme Court, however, is whether a 2017 high court opinion changed the law such that Mitchell should be allowed to reopen his case.

While juror testimony regarding deliberations is generally prohibited from being considered in such requests, the Supreme Court allowed an exception to the “no-impeachment rule” when there is evidence that the jury was racially biased against the defendant.

The Sixth Amendment right to an impartial jury “requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence” of racial bias, the Supreme Court said in Pena-Rodriguez v. Colorado.

Mitchell argues that in addition to recognizing a new exception, the Supreme Court’s ruling necessarily changed the rules regarding how lawyers can investigate these claims.

In his petition, he points to statements made during closing arguments that suggest the jury might have been biased against Native Americans.

The Ninth Circuit, though, said it was the district judge’s discretion on whether to allow Mitchell to reopen his case to interview jurors and that Pena-Rodriguez had done nothing to change that.

In particular, the court found that there was no actual evidence of juror bias and that “Mitchell’s allegations of juror misconduct were based on wholesale speculation.”

Resuming Federal Executions

A separate appeal to stop Mitchell’s execution is being argued in the Ninth Circuit Aug. 18.

In that appeal, Mitchell argues that the government violated the Federal Death Penalty Act by ordering that he be executed by lethal injection.

A similar challenge to the method of execution was heard in the D.C. Circuit, and the Supreme Court ultimately cleared the way for the federal government to resume executions for the first time since 2003.

Three federal death row inmates were executed in July and the Justice Department had announced plans to execute another the same week as Mitchell. All five men had been convicted of murdering children.

Mitchell’s Supreme Court petition regarding juror bias hasn’t been docketed yet by the high court, but was delivered on Aug. 17, according to his attorneys.

The case is Mitchell v. United States, U.S., filed 8/17/20.