The only Native American on federal death row faces execution Wednesday
By Jessica Schneider, CNN
(CNN) -- As the clock ticks toward the scheduled Wednesday night execution of the only Native American on federal death row, attorneys for 38-year-old Lezmond Mitchell are fighting on multiple fronts and pleading directly to President Donald Trump to commute Mitchell's death sentence.
Late Tuesday night, the Supreme Court denied Mitchell's motions to stop his execution. The federal district court in Washington, DC, also denied a request to halt Mitchell's execution until after his petition to the President for clemency has had more time to be considered.
Mitchell filed his clemency petition at the end of July asking the President to demonstrate respect for tribal sovereignty by commuting his death sentence to life in prison without the possibility of release. Mitchell argues that since the Department of Justice set his execution date on July 29, his petition for clemency has not been given adequate time for consideration. But with Mitchell's execution scheduled for 6 p.m. ET Wednesday, it is unlikely his clemency request will be granted at this late stage.
Mitchell was convicted in connection with the 2001 murders of a 63-year-old Navajo woman, Alyce Slim, and her 9-year-old granddaughter, Tiffany Lee, on the Navajo reservation in the northeast corner of Arizona.
Prosecutors said Mitchell and his co-defendant murdered Slim and Lee, dismembering both of their bodies and burying them, so they could steal Slim's pickup truck and use it in an armed robbery. Mitchell, who was 20 at the time of the crimes, was found guilty on multiple charges including first-degree murder, felony murder and carjacking resulting in death.
Tribal leaders from the Navajo Nation, of which Mitchell is a member, and 13 other tribes have called out the federal government for moving forward with the execution despite their objection, in a case that has exposed allegations of racial bias and legal loopholes.
Mitchell's attorneys say he would be the first Native American in modern history to be executed by the US government for a crime committed against another Native American on tribal land. That's because under the Major Crimes Act, Congress allowed a "tribal option" where tribal leaders can decide whether to opt in to the federal death penalty. The Navajo Nation, along with many other Native American tribes, has not opted in.
But since the Major Crimes Act applies only to serious crimes including murder and manslaughter, federal prosecutors in Mitchell's case found a legal loophole: They could pursue the death penalty in the carjacking resulting in death charge, which is not considered a serious crime and does not fall under the act.
Several judges have voiced their concern at this dismissal of tribal sovereignty, despite denying appeals from Mitchell. In April, two judges on the 9th US Circuit Court of Appeals wrote separate opinions questioning the Justice Department's decision to seek the death penalty in Mitchell's case.
"The imposition of the death penalty in this case is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty," Judge Morgan Christen wrote.
Judge Andrew Hurwitz urged the Trump administration to "take a fresh look at the wisdom of imposing the death penalty," noting that "a proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it."
Mitchell's attorneys have also raised concerns about potential racial bias in his conviction and sentencing, pointing to the fact that he was tried in a federal court 300 miles from the capital of the Navajo Nation and his jury was comprised of 11 White people and one Native American. The 9th Circuit rejected Mitchell's motion to interview jurors to determine if there was racial bias in his case.
If Mitchell's execution goes forward, it will be the fourth federal execution this summer after the Justice Department restarted executions following a 17-year hiatus.
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