By Linh Nguyen
WASHINGTON D.C. – As his scheduled execution day looms, now set for Aug. 26, Lezmond Mitchell—the only Native American on U.S. death row—has appealed to the U.S. Supreme Court to ask for clemency.
He and his legal team have long contended that the government exploited anti-Native American biases in its effort to secure a death sentence, further citing racial bias when 11 white jurors convicted him of carjacking resulting in death in 2003.
In 2001, Lezmond Mitchell participated in a carjacking that resulted in the death of a grandmother and her granddaughter. Since his conviction, Mitchell and his legal team sought to investigate racial bias among the trial jurors, filing appeals for commutation.
Amid the outstanding legal battle, the Navajo Nation and members of the victims’ family also oppose Mitchell’s sentence and support commuting his death sentence to life imprisonment—asking for respect for tribal sovereignty and respect for Navajo religious and traditional beliefs against the death penalty.
The first attempt at re-opening Mitchell’s case was to interview the trial jurors that convicted him. The jury consisted of 11 white jurors and one Navajo juror. Given the unequal racial profile of
the aggregate jury, Mitchell’s own racial profile and the conviction, Mitchell suspected that racial bias against Native American stereotypes among the majority of the jurors could have led to their conviction.
Arizona state law requires that those seeking to interview jurors after a trial must get permission from the court. In 2009, Mitchell filed a motion for the court to grant permission for his counsel to interview jurors regarding racial and religious prejudice, to see if Mitchell’s Navajo beliefs contributed to his death sentence.
The court denied this motion because they did not believe Mitchell established good cause to substantiate his request.
Mitchell now asks the Supreme Court to grant review to decide whether Pena-Rodriguez v. Colorado (2017) requires that defendants be able to interview their trial jurors about racial bias, at least in death penalty cases. Mitchell argues that without the ability to do so, defendants will rarely, if ever, be able to provide evidence of racial bias in jury deliberations needed to support a claim for relief under the ruling.
Mitchell referred to the ruling in his initial motion and appeals to reverse the district court’s order and grant him permission to interview the jurors. Under Pena-Rodriguez v. Colorado, the Supreme Court held that evidence of racial bias influencing jury verdicts qualifies as reason to question jury deliberations. However, if no explicit evidence is found, then questioning jury deliberations would be barred.
Considering that it is very unlikely for a juror to openly express racial bias for the reason of their deliberations, it would be difficult to provide evidence of racial bias, which is what Mitchell contends.
The writ of certiorari argues that there is substantial potential that racial bias influenced the death verdict.
First, the government sought a death sentence for Mitchell despite the Navajo Nation’s opposition. Second, the trial was moved to a division in the District of Arizona with a much smaller Native American population, where the jury profile’s extreme lack of racial diversity proved to be a challenge. Lastly, during the closing argument, the prosecution made a blatantly racist remark, stating that in the “Old West,” Mitchell “would have been taken out back, strung up.”
Two of the three panel judges from the Ninth Circuit Court of Appeals expressed concerns about Mitchell’s case.
Judge Morgan Christen questioned why Mitchell was sentenced to death for an intra-Indian crime committed in Indian country for carjacking, which is not considered a major crime under the Major Crimes Act.
Although Judge Christen concurred with the affirmation of the district court’s order, he cautioned that sentencing Mitchell to death for a non-major crime against the Navajo Nation’s opposition violates the tribal sovereignty commitment.
Judge Andrew Hurwitz, who also concurred, expressed similar concerns, writing, “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.”
Mitchell also filed for clemency from President Trump on July 31, asking that Trump commute Mitchell’s sentence to life imprisonment without possibility of parole. The petition cites violation of Navajo sovereignty, disproportionality of Mitchell’s sentence to sentences given to more culpable co-defendants, Mitchell’s remorse and support from community members and the victim’s family as reasons to grant clemency.
Navajo President Jonathan Nez and Vice President Myron Lizer also support this request and personally appealed to Trump in a letter.
“The Navajo Nation is respectfully requesting a commutation of the death sentence and the imposition of a life sentence for Mr. Mitchell,” the letter notes, adding, “This request honors our religious and traditional beliefs, the Navajo Nation’s long-standing position on the death penalty for Native Americans, and our respect for the decision of the victim’s family… We need to address this issue to move forward in our trust of our federal partners and to continue to work on the importance of protecting our People.”
The Navajo Nation Council also joined Nez and Lizer in requesting clemency for Mitchell.
In a letter to President Trump, Speaker Seth Damon expressed the Navajos’ condemnation of the crimes, as it violates the tribe’s belief that life is “sacred and must be protected.” Because of this belief, the Navajo Nation also does not believe in the death penalty, stating that “vengeance or retribution are western ways that conflict with Navajo principles of harmony, balance and restoring the whole.”
Damon also explained how the federal government’s decision to seek the death penalty against Mitchell is an abuse of the system.
“It disregarded the Navajo Nation’s position against the death penalty, and it disregarded the letter of the law that recognizes a tribe’s sovereign choice and decision in the application of that law,” Damon writes.
Awaiting the scheduled execution date, Mitchell’s petition for clemency also asks for a reprieve to postpone his execution while the Office of the Pardon Attorney conducts its investigation, to consider an oral presentation from Mitchell’s counsel and advocates from the Navajo Nation, and to prepare its recommendation for the Deputy Attorney General to deliver to the President and for the President to make his decision.
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