Here is “Justice Department sets execution date for only Native American on death row.”
Here is the most recent opinion in his case, where two Ninth Circuit judges questioned his sentence.
Below is a statement from counsel for Mr. Mitchell. Deputy Federal Public Defenders Jonathan Aminoff and Celeste Bacchi:
“With the enactment of the Federal Death Penalty Act, Congress made a commitment to the Native American peoples that no Native American would be subjected to the death penalty for a crime committed against a fellow Native American on Native American land unless the tribe consented. In what the Ninth Circuit Court of Appeals referred to as a “betrayal of a promise made to the Navajo Nation,” the Department of Justice exploited a legal loophole and sought the death penalty against Mr. Mitchell for the federal crime of carjacking over the objection of the Navajo Nation, the victims’ family, and the local United States Attorney’s Office. The federal government’s announcement that it now plans to execute Lezmond Mitchell demonstrates the ultimate disrespect for the Navajo Nation’s values and sovereignty.
The Government’s contravention of tribal autonomy did not end with the decision to pursue a death sentence against Mr. Mitchell. In addition to the charging decision, the Government committed misconduct in the course of this prosecution by confining Mr. Mitchell in a tribal jail where they continually interrogated him over the course of 25 days without providing him an attorney. Furthermore, the Government systematically excluded Navajos from serving on Mr. Mitchell’s jury, resulting in a jury composed of 11 white people and only one Navajo. Unfortunately, we have been barred from investigating concerns of juror bias amongst Mr. Mitchell’s jury. Under these circumstances, allowing Mr. Mitchell’s execution to go forward would be a grave injustice and an unprecedented affront to tribal sovereignty, and it should not be permitted to proceed. We will continue to pursue all available avenues of relief for Mr. Mitchell from his unconstitutional convictions and death sentence.”
-Deputy Federal Public Defenders Jonathan Aminoff and Celeste Bacchi, attorneys for Lezmond Mitchell
-July 29, 2020
Here is the opinion in Mitchell v. United States.
Judge Christen noted that this is the first intra-tribal carjacking crime to result in death:
I join the majority’s considered opinion in full, but write separately because the lengthy history of this case may make it easy to lose track of the fact that Mitchell did not receive the death penalty for his murder convictions. Mitchell was sentenced to death because, in the course of committing their atrocious crimes, he and his accomplice also committed a carjacking. 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.
Concurring Judge Hurwitz called on the AG to reconsider this matter:
I write separately to stress a point aptly made earlier in the long history of this case by Judge Reinhardt. See Mitchell v. United States, 790 F.3d 881, 894–97 (9th Cir. 2015) (Reinhardt, J., dissenting in part). The heinous crimes that gave rise to this case occurred entirely within the territory of the sovereign Navajo Nation. The defendant is a Navajo, as were the victims. The Navajo Nation has, from the outset of this case, opposed imposition of the death penalty on the defendant, as have members of the victims’ family
Mitchell Cert Petition
Petitioner, a Navajo, is a federal prisoner sentenced to death under the
Federal Death Penalty Act, 18 U.S.C. §§ 3591-3599. Petitioner’s statements to the
FBI constituted the primary evidence at his capital trial. The FBI took these
statements while petitioner spent twenty-five days in tribal custody, with no right
to the assistance of counsel. In a motion to vacate his sentence under 28 U.S.C.
§ 2255, petitioner presented evidence that a working arrangement between federal
and tribal authorities resulted in his arrest on a minor tribal charge, and kept him
in prolonged custody not authorized under Navajo Nation law, to deprive him of his
federal procedural rights. Petitioner also alleged ineffective assistance at the guilt
and penalty phases of his trial, and the depositions of his three trial attorneys
revealed serious contradictions regarding the investigations undertaken and
An evidentiary hearing is required in a Section 2255 case “[u]nless the
motion and the files and records of the cases conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this case, the district court denied the
Section 2255 motion without a hearing, and a divided court of appeals affirmed.
The questions presented are:
1. Whether the court of appeals, in conflict with the Eighth and Tenth Circuits’
grants of a hearing on similar records, erroneously concluded that petitioner
could not establish, under any circumstances, that his attorneys had
performed deficiently at the penalty phase of his trial.
2. Whether the court of appeals clearly misapprehended Section 2255(b)’s
standards by viewing the facts in the light most favorable to the government,
weighing the evidence, and silently resolving factual disputes to conclude
that no evidentiary hearing was required.
3. Whether the court of appeals erroneously concluded that reasonable jurists
could not debate whether an evidentiary hearing was warranted on
petitioner’s claim of federal-tribal collusion to deprive him of his rights to
prompt presentment and assistance of counsel.
Lower court decision.
Prior posts here and here.
Some of you might remember this case — the Ninth Circuit’s opinion affirming the death sentence was a big part of the discussion at the FBA Indian Law Conference three years back — US v Mitchell CA9 Opinion.
Here is the district court order on habeas review: Order Denying Mitchell Habeas Relief
The Federal Death Penalty Act, 18 USC 3598, requires federal prosecutors to seek tribal concurrence on the death penalty before seeking the sentence for Indian country crime committed by tribal members. So the Ashcroft Dept. of Justice sought the death penalty under a different jurisdictional statute, and successfully avoided the tribal concurrence provision.