PHOENIX (AP) — The only Native American on federal death row lost a bid Thursday to look into potential racial bias in his case.
The 9th U.S. Circuit Court of Appeals upheld a decision by a federal court in Arizona that Lezmond Mitchell had no grounds to interview jurors for potential bias against Native Americans.
Mitchell was convicted of the 2001 murder of a fellow Navajo tribal member and her 9-year-old granddaughter on the reservation that extends into Arizona, New Mexico and Utah. He was scheduled to be executed last December, but the 9th Circuit put it on hold because of his attorneys' appeal.
The three-judge panel found Mitchell failed to show any discrimination occurred among the jury and pointed out several safeguards that were in place.
“Jurors were asked ... about their attitudes towards Native Americans, were instructed not to consider race, and were required to sign a certification attesting that they did not consider race,” Judge Sandra Ikuta wrote.
Mitchell's attorneys could ask for a rehearing before the full 9th Circuit. They said Thursday they will pursue all available avenues of relief.
“The Ninth Circuit’s decision puts prisoners like Lezmond Mitchell in an impossible position," the attorneys said in a statement. “Although the Supreme Court has held that racial bias in jury deliberations renders a trial fundamentally unfair, Mr. Mitchell has been barred from investigating whether his jury was tainted by racial bias.”
Assistant U.S. Attorney William Voit equated the appeal to a “fishing expedition” during oral arguments in December. The U.S. Department of Justice declined comment Thursday.
Mitchell and an accomplice abducted Alyce Slim, 63, and her granddaughter in October 2001 with plans to use Slim's vehicle in a robbery. Prosecutors said the two fatally stabbed Slim and slit the girl's throat. Their beheaded, mutilated bodies were found in a shallow grave on the Navajo Nation.
Despite the grisly nature of the killings, tribal officials and even the victims' family opposed the death penalty. American Indian tribes for decades have been able to tell federal prosecutors if they want a death sentence considered for certain crimes on their land. Nearly all have rejected that option.
Mitchell was convicted of carjacking resulting in death — a crime that carries a possible death sentence no matter where it happens, meaning the tribe had no avenue to object.
Judges Morgan Christen and Andrew Hurwitz of the 9th Circuit concurred with the ruling Thursday but wrote separately that the United States should reconsider whether the death penalty is appropriate 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,” Christen wrote. “People can disagree about whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves.”
The Justice Department announced last year the federal government would resume executing death-row inmates for the first time since 2003. Mitchell was one of five male inmates scheduled to be put to death. But the U.S. Supreme Court blocked the Trump administration last December from carrying them out.
The federal appeals court in Washington, D.C., is reviewing the case.
Fonseca reported from Flagstaff.