With execution on hold, Navajo inmate presses court on jury bias claim

PHOENIX – A federal appeals court panel grappled Friday with how – or why – convicted Navajo double-murderer Lezmond Mitchell could question jurors from his trial 16 years ago about possible racial bias in their deliberations.

The hearing before three judges of the 9th U.S. Circuit Court of Appeals came two days after Mitchell, the only Native American on death row in the federal prison system, had been scheduled to be executed.

That execution was put on hold by the court so it could hear Mitchell’s bias arguments. But while the panel was sympathetic, the judges appeared to be having a hard time seeing how to grant Mitchell’s request, noting that it had already been turned down once by a lower court.

“We take racial bias exceptionally seriously,” Judge Morgan Christen said emphatically. But she also thought Mitchell’s attorney had not shown “good cause” to suspect racial bias.

Public Defender Jonathan Aminoff told the panel that Mitchell’s case is “rife with concerns of racism,” adding that the Supreme Court in 2016 recognized a right for defendants to investigate juries where there’s concern of racial bias.

“This is the only federal capital prosecution of a Native American in the history of this country,” Aminoff said, arguing that racial makeup of the jury alone – 11 white jurors to 1 Native juror – merits investigation.

Assistant U.S. Attorney William Voit countered that in the 16 years since Mitchell was sentenced, no evidence has surfaced to suggest racial bias – and that it is too late now to question jurors about it.

“16 years after a trial … it’s unlikely you’re going to be adding good information to what were substantial contemporaneous indicia of reliability,” Voit said at the hearing. He noted that jurors during and after the selection process were rigorously vetted for racial bias.

Mitchell was one of five federal inmates targeted by U.S. Attorney General William Barr to be executed under a resumption of the federal death penalty. The first was supposed to have happened Monday, with Mitchell scheduled to be the second executed. But the 9th Circuit in October stayed Mitchell’s execution, and a federal judge in Washington last month put the other four on hold, saying the government had improperly adopted a new lethal injection protocol for the killings.

When he announced the planned executions in July, Barr said the government was focusing on death-row inmates who had preyed on “the most vulnerable in our society – children and the elderly.” Mitchell was convicted of the 2001 murders of a Navajo woman and her 9-year-old granddaughter.

The case began on Oct. 28, 2001, when Mitchell and an accomplice, Johnny Orsinger, hitched a ride from Alyce Slim, 63, on the New Mexico side of the Navajo Nation. Court documents show Orsinger began stabbing Slim with Mitchell joining in after.

The two men then put Slim’s body in the bed of her pickup truck and forced her granddaughter to sit with the corpse as they drove off into a remote part the Arizona side of the Navajo Nation. After taking the young girl out of the car, Mitchell twice slit her throat, telling her to “lay down and die,” before Orsinger used a rock to deliver the killing blow.

Navajo have deeply held religious objections to capital punishment and the Navajo Nation opposed the death sentence for Mitchell. Under a provision of the 1994 Federal Death Penalty Act, the federal government would normally need a tribe’s approval to seek the death penalty.

But Mitchell’s case involved a carjacking that resulted in death, and those crimes do not require tribal consultation. Court records show that then-U.S. Attorney General John Ashcroft pushed for the death penalty over the objections of the Navajo Nation.

“I wish the government had not decided to bring this capital case over the objections of the Navajo Nation, but it did,” Circuit Judge Andrew Hurwitz. He pressed Aminoff to show specific examples during the case or jury deliberation that would raise questions of racial bias.

“I can’t answer your question, because I haven’t been allowed to investigate,” Aminoff replied.

Aminoff said the lack of an investigation, and the “systematic exclusion” of Native Americans from Mitchell’s jury were cause enough. Other judicial districts in the 9th Circuit allow investigations of juries for possible racial bias, but not Arizona, Aminoff said.

“There are four people on federal death row from the 9th Circuit. Three of them come from districts that don’t bar this type of investigation at all,” Aminoff said. “Why would Mr. Mitchell need to be that one exception?”

Aminoff also said that only seven of the jurors in Mitchell’s case thought the Navajo Nation’s plea to spare Mitchell’s life was valid.

“That is extremely concerning, and were it not for this court’s intervention, this man would have been dead two days ago,” he said.