WASHINGTON (CN) — Clearing the way for the first federal execution of a Native American in modern history, the Supreme Court rejected claims of jury bias late Tuesday night from Navajo man Lezmond Mitchell.
The Navajo Nation has strongly objected to the execution — Mitchell’s lethal injection is set for Wednesday at 6 p.m. — and joined the victims’ family in challenging it.
Now 38, Mitchell was found guilty of the 2001 killing of a woman and her granddaughter during a carjacking on tribal land.
Mitchell’s attorneys Jonathan Aminoff and Celeste Bacchi noted Wednesday that their last hope is executive clemency from President Donald Trump.
Though they claimed that Mitchell’s sentence was handed down by a racially biased jury, the Justice Department told the high court the claim was “nothing more than a fishing expedition,” and that his case did not meet the “extraordinary circumstance” to justify reopening the record.
Mitchell had argued that the federal government purposely moved his trial to a part of the District of Arizona with a small Native American population, then leaned heavily on anti-Native American stereotypes in its arguments to the jury — 11 white, only one Native American.
These claims may never be resolved, Aminoff and Bacchi said in a statement Tuesday night, “yet we do know that Mr. Mitchell’s death sentence represents an unprecedented infringement on the sovereignty of the Navajo Nation, which has steadfastly opposed his execution.”
With respect to Mitchell’s unsuccessful stay application, Justice Sonia Sotomayor wrote in a statement that “considerable uncertainty” remains on the scope of the Federal Death Penalty Act of 1994.
“In the most detailed analysis provided by a lower court to date, three judges offered three different views on how to define the ‘manner’ of implementing a death sentence and where to locate the relevant ‘law of the State,’” Sotomayor wrote.
The federal government resumed federal executions last month after a 17-year hiatus, following a 5-4 Supreme Court reversal in the first of the cases Barr v. Lee.
Sotomayor said she supported the decision to deny Mitchell’s appeal but also distinguished his case from the issues raised in the rapid-fire line of appeals last month that divided the justices.
“With additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” the Obama appointee added. “I believe that this Court should address this issue in an appropriate case.”
Like this summer’s three previous federal executions, Mitchell’s tonight will also be carried out in Terre Haute, Indiana.
The Justice Department scheduled the lineup of executions in June, drawing criticism that carrying out the sentences was a campaign strategy by Trump to reinforce his mantle as the “law and order” candidate.
The Navajo government has pleaded with Trump to commute Mitchell’s death sentence, arguing the execution is an affront to their sovereignty.
Navajo Nation Council Speaker Seth Damon urged Trump in a letter to respect the wishes of the victims’ family, who are also Navajo citizens, and grant Mitchell life in prison without parole.
“Vengeance or retribution are western ways that conflict with Navajo principles of harmony, balance and restoring the whole,” Damon wrote on Aug. 16.
Mitchell’s attorneys argued in their federal complaint filed Tuesday in Washington that the inmate suffered from serious mental illness and drug addiction when he murdered his victims.
They also claimed his co-defendant, Johnny Orsinger, was the primary aggressor and had committed an unrelated double homicide months before the killing of Alyce Slim, 63, and her 9-year-old granddaughter. Orsinger was a juvenile and received a life sentence, while Mitchell, who turned 20 just weeks before the crimes, was sentenced to death.
“Had the jury heard this crucial mitigating evidence, it is more than likely that at least one of them would have determined that Lezmond’s life was worth saving,” the petition states.
The Bureau of Prisons also found that Mitchell had a low risk of recidivism, his attorneys noted, stressing the inmate’s remorse over the crimes he committed.
“Despite the Navajo Nation’s opposition to the death penalty generally, and to its imposition for Mitchell specifically, DOJ exploited a legal loophole and capitally prosecuted Mitchell for the general applicability crime of carjacking resulting in death,” they wrote in Tuesday’s complaint.
Also on Tuesday, the D.C. Circuit refused to block what will be this week’s second federal execution.
Keith Nelson had sought a stay of execution based on autopsy findings that Wesley Ira Purkey, executed on July 16, suffered extreme pain before succumbing to lethal injection.
Attorneys for Nelson also accused the government of having used expired vials of pentobarbital in July, presenting photos in support of their claims that the pentobarbital the government plans to administer to their client may be subpotent, thus increasing the risk of prolonged death and extreme pain.
Nelson is scheduled to go to the death chamber on Friday. He pleaded guilty in 2001 to kidnapping and murdering a 10-year-old girl who was rollerblading outside her home.
Like the three inmates executed last month, Nelson has argued the new federal execution protocol rolled out by Attorney General William Barr this summer violates the Eighth Amendment.
But the D.C. Circuit found that the Supreme Court’s ruling in Lee last month left no room to block Mitchell’s execution.
“Nelson’s new evidence provides no ground on which we might grant equitable relief,” Tuesday’s ruling from the three-judge panel states. “The district court made no factual findings on that evidence, and we are in no position to do so in the first instance.”