CRONKITE NEWS

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

Dec 16, 2019, 4:25 AM
(Photo by Harrison Mantas/Cronkite News)...
(Photo by Harrison Mantas/Cronkite News)
(Photo by Harrison Mantas/Cronkite News)

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.

Lifetime Windows & Doors

We want to hear from you.

Have a story idea or tip? Pass it along to the KTAR News team here.

Cronkite News

A catalytic converter sits in the undercarriage of a vehicle at Courtesy Chevrolet in Phoenix on Ju...
Troy Hill | Cronkite News

What police and car dealers recommend to deter catalytic converter theft

The National Insurance Crime Bureau reports that the number of catalytic converter theft claims to insurance companies jumped from 3,389 in 2019 to 14,433 in 2020 – a 325% increase.
2 days ago
(Photo by Shealah Craighead/The White House)...
Tracy Abiaka I Cronkite News

Prescott Valley to foot public safety bill for former President Donald Trump’s rally

Prescott Valley officials expect crowds this week when former President Donald Trump holds a political rally there, but what they don’t expect is payment.
22 days ago
What looks like craggy mountains on a moonlit evening is actually the edge of a nearby, young, star...
Morgan Fischer I Cronkite News

First images from Webb Telescope leave Arizona contributors ‘speechless’

Several Arizona scientists worked on a telescope that produced "stunning" full-color images showing thousands of far-away galaxies.
27 days ago
The Threshold initiative was launched June 1, 2022, at a news conference at the Arizona Multihousin...
Julio Ernesto Mora Rodriguez I Cronkite News

Landlords asked to help solve homelessness through new Maricopa County initiative

The number of people experiencing homelessness is rising in Maricopa County, and with it the need for affordable housing. Enter Threshold, which intends to change the housing dynamic by inviting landlords to be part of the solution.
1 month ago
(Photo by Omar Iakub/Cronkite News)...
Cronkite News | Neetish Basnet

Passing on gas: Biden’s gas-tax holiday gets cool reception in Arizona

While some states have already moved to temporarily suspend their gas taxes, Arizona is not one of them – nor is it likely to adopt the president’s plan.
1 month ago
People visit a memorial at Robb Elementary School in Uvalde, Texas, Thursday, June 2, 2022, to pay ...
Morgan Fischer I Cronkite News

After Uvalde, Arizona schools balance hard and soft deterrents to attacks

With little hope that state lawmakers will pass gun-control measures in the wake of the latest school shooting, Arizona educators find themselves balancing the competing goals of hardening schools while making them welcoming places.
2 months ago

Sponsored Articles

...
Mayo Clinic Orthopedics and Sports Medicine

Why your student-athlete’s physical should be conducted by a sports medicine specialist

Dr. Anastasi from Mayo Clinic Orthopedics and Sports Medicine in Tempe answers some of the most common questions.
(Courtesy Condor)...
Condor Airlines

Condor Airlines shows passion for destinations from Sky Harbor with new-look aircraft

Condor Airlines brings passion to each flight and connects people to their dream destinations throughout the world.
...
CANVAS ANNUITY

Best retirement savings rates hit 4.30%

Maximize your retirement savings with guaranteed fixed rates up to 4.30%. Did you know there is a financial product that can give you great interest rates as you build your retirement savings and provide you with a paycheck for life once you retire? It might sound too good to be true but it is not; this product is called an annuity.
With execution on hold, Navajo inmate presses court on jury bias claim