In October 2001, Lezmond Mitchell confessed to the murder of sixty-three-year-old Alyce Slim and her nine-year-old granddaughter. A jury convicted Mitchell and sentenced him to die for his crimes. Now, eighteen years after the killings, the Ninth Circuit has stayed Mitchell’s execution. The reason—potential racial bias by the jury who convicted him.
Lezmond Mitchell is a citizen of the Navajo Nation, as were his victims. The killings occurred on tribal land, and thus fell under federal jurisdiction. The details are gruesome. Ms. Slim and her granddaughter were headed to New Mexico when they were violently carjacked by Mitchell and another man, Orsinger. Mitchell and Orsinger forced the elderly woman out of her GMC pickup and stabbed her thirty-three times before placing her lifeless body back in the truck. The nine-year-old sat next to her grandmother’s corpse as Mitchell drove to the Chuska Mountains to dump the body. There, Mitchell and Orsinger murdered the young girl by slitting her throat and dropping a rock on her head. They then decapitated and dismembered both bodies, buried the victims’ heads and hands, and dragged the other remains into the forest. Mitchell would later confess and lead investigators to the bodies of his victims.
Both the Navajo Department of Justice and the victims’ family opposed the death sentence for Mitchell, as tribal culture and religion forbid taking life for vengeance. Oddly, under federal and Navajo law at the time, Mitchell could not receive the death penalty for murders committed on tribal land. He could, however, for other federal capital offenses, including carjacking, for which the mostly white jury ultimately sentenced him to die.
Despite his sentence, Mitchell’s execution did not appear likely—the federal government stopped executing people in 2003 because of issues obtaining the three-drug-cocktail used in lethal injections. However, in 2019, Attorney General Barr announced plans to resume federal executions using lethal injections of a single drug, pentobarbital. Pentobarbital, it was claimed, did not suffer from the availability issues of the previously used lethal injection formula. AG Barr prioritized death-row executions for those convicted of crimes that targeted “the most vulnerable in our society—children and the elderly.” Mitchell fit both bills, and, at the Attorney General’s direction, Mitchell’s execution was scheduled for December 11, 2019.
The Ninth Circuit stayed that execution date to hear Mitchell’s appeal from a 2018 Federal District Court decision. Mitchell sought to interview the jurors who convicted him eighteen years ago to uncover if they were motivated by racial bias. Senior United States District Judge Campbell denied Mitchell’s motion, citing the presumption of an unbiased jury, the failure to allege any reason to believe the jurors in his case were biased, and the existence of safeguards such as voir dire and courtroom observation of jurors as grounds to deny Mitchell’s request.
Mitchell is one of five men currently scheduled for federal execution, and the only one as of now to be granted a stay. Regardless of the outcome of his appeal, the stay itself may afford Mitchell another opportunity for relief, depending on the outcome of the other pending executions. While it is true that the use of pentobarbital alone in lethal injections has survived 8th Amendment scrutiny, it is not certain that this will continue to be the case. The drug’s main manufacturer stopped selling it to the U.S. for executions in 2011, forcing some states to purchase contaminated or less potent versions of pentobarbital from other sources. These versions of pentobarbital have resulted in several botched executions. In Texas, death-row inmates injected with locally produced pentobarbital writhed on the floor and screamed in pain that they were burning before finally succumbing to death. It is unknown where the federal government will obtain pentobarbital, but a botched federal execution resulting from lesser versions of the drug could give rise to cruel and unusual punishment claims, possibly providing Mitchell with another legal ground to attack his sentence.
The Ninth Circuit will hear Mitchell’s appeal on December 13 of this year, two days after he was set to be executed.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.