WASHINGTON – A divided appeals court has stayed the scheduled December execution of Lezmond Mitchell, a Navajo double-murderer, saying it needs time to consider his claim that he was not allowed to question jurors for potential racial bias.
Mitchell, the only Native American on federal death row, was one of five inmates identified by Attorney General William Barr when he announced plans in July to resume federal executions for the first time in nearly two decades.
Barr set Mitchell’s execution set for Dec. 11, but a divided panel of the 9th U.S. Circuit Court of Appeals on Friday ordered the execution be put on hold and set a Dec. 13 date to hear Mitchell’s pending appeal of his racial bias claim.
In a dissent, Judge Sandra Segal Ikuta chided the other judges for rushing to delay the execution, saying the court has ample time to hear Mitchell’s appeal before his execution date. She also said the majority failed to consider whether Mitchell has a “significant possibility of success” on his appeal, a requirement for granting a stay.
“We frequently decide claims in capital cases in a matter of days,” wrote Ikuta, who noted that arguments in Mitchell’s latest appeal could be heard by mid-October. “We should do that here.”
A request Monday for comment on the case from the Justice Department was not immediately returned. Calls to Mitchell’s attorneys, to the Navajo Nation and to tribal groups and capital punishment opponents were also not returned.
When he announced the resumption of federal executions, Barr said this summer that the Justice Department prioritized death-row inmates convicted of “murdering, and in some cases torturing and raping, the most vulnerable in our society – children and the elderly.”
Mitchell was convicted for the 2001 carjacking and brutal murders of a Navajo grandmother, Alyce Slim, 63, and her 9-year-old granddaughter in a remote part of the Navajo Nation.
According to court records, when he and an accomplice set out to steal Slim’s GMC pickup truck, they abducted her and the girl. They stabbed Slim 33 times and forced the girl to sit next to her grandmother’s body in the back of the truck. They later pulled both from the truck, told the girl to “lay down and die” next to her grandmother, before twice slitting the girl’s throat – then dropping heavy rocks on her head to kill her when she did not die from the slashing.
Mitchell was convicted on 11 counts, including first-degree murder and carjacking. Under federal and Navajo law at the time, Mitchell could not be sentenced to death for committing the murders on the reservation. But federal law at the time made carjacking a capital offense, and court records say that then-Attorney General John Ashcroft pressed for the death penalty in the case.
Both the Navajo Nation and the victim’s family said they opposed the death penalty. But Mitchell was sentenced to death in 2003.
In his dissent to a 2015 ruling in the case, Circuit Judge Stephen Reinhardt noted that Mitchell could be the first Native American put to death by the federal government for an “intra-Indian crime that occurred in Indian Country” if the execution went forward.
In his latest appeal, Mitchell’s lawyers last August cited a Supreme Court case that said courts could consider evidence that jurors “relied on racial stereotypes or animus to convict a criminal defendant.”
Ikuta said jurors in Mitchell’s case signed statements that said race played no role in their decision, and there was no evidence of bias on their part. But Mitchell’s attorneys said they should be allowed to question the jurors because of “the government’s closing argument was riddled with comments that should not have been made,” some of which related to Mitchell’s “religious beliefs and Navajo culture.”
The 9th Circuit had ruled in 2007 that any comments in the closing arguments “were not, in and of themselves, nearly as inflammatory as the graphic evidence of the murders … which was quite properly before the jury.” And a district court last year rejected Mitchell’s latest request to question jurors.
Mitchell’s appeal of that district court ruling was pending when Barr scheduled his execution for Dec. 11. Because the circuit court had ruled that the appeal could go forward, Mitchell asked for and was granted the stay while his appeal is argued.
The circuit court set a hearing on that appeal for Dec. 13 in Phoenix.