This Man Will Die Tonight Against a Government's Wishes

After a 17-year pause, federal executions resumed this summer, with three men put to death. A fourth man on federal death row is slated to experience the same fate tonight in Terre Haute, Ind., but that fate is one a government—the Navajo government—has vehemently opposed. That's because Lezmond Mitchell, 38, was convicted of two murders that happened on tribal land in Arizona, and his attorneys say this: "This case represents the only time in the history of the modern death penalty that the United States government has sought the death penalty over the objection of a Native American tribe when the criminal conduct in question was committed on tribal land." Details of the case:

• The crime: Mitchell, then 20, and Johnny Orsinger, then 16, in 2001 hailed a ride from Alyce Slim, 63; she was traveling to Arizona from New Mexico with her 9-year-old granddaughter, Tiffany Lee. Authorities say the men stabbed Slim 33 times and put her body next to Tiffany; Mitchell later slit the child's throat, and the Arizona Republic reports the act didn't kill her, so Orsinger used rocks to end her life. The bodies were dismembered and buried, and Mitchell later used Slim's truck to rob a reservation general store.
• The case: The Marshall Project in 2019 cited court filings that showed Navajo Nation leaders, along with Marlene Slim (daughter of Alyce and mother to Tiffany) asking the Justice Department not to seek the death penalty. The federal prosecutor told the DOJ he was not recommending they seek capital punishment. Under the Federal Death Penalty Act, the US government may not seek death in cases where Native Americans commit a crime against other Native Americans on tribal land, unless the tribe gives the government its blessing. The Navajo Nation does not support capital punishment.
• The loophole: John Ashcroft, who was attorney general at the time, used what the Marshall Project calls "a legal work-around" to seek a death sentence. He based it on the allegation that Mitchell committed a carjacking resulting in death. The Indianapolis Star reports that's a crime that has "nationwide applicability," meaning it can be charged as a federal crime wherever it occurs.

• Issues with the case: In an op-ed for the New York Times, Carl Slater, a delegate to the Navajo Nation Council, writes that the case "offends tribal sovereignty for other reasons. After his arrest, the government abused the tribal court system" to hold Mitchell "in a tribal jail for 25 days, without access to a lawyer, while the FBI continually interrogated him." He didn't get a lawyer until the FBI said it had secured a confession from him—one it didn't tape-record. "In fact, in his only recorded statement, Mr. Mitchell denied having a direct role in the capital offenses. Were Mr. Mitchell a non-Indian, the federal government would not have been permitted to use these purported confessions against him," Slater writes.
• Halting the execution: The Supreme Court was on Sunday asked by Mitchell's lawyers to stop the execution; they denied the request Tuesday night. CNN reports the federal district court in Washington, DC, also denied Mitchell's request until after the petition for clemency he filed with President Trump in late July could be considered. CNN's take: "With Mitchell's execution scheduled for 6pm ET Wednesday, it is unlikely his clemency request will be granted at this late stage."
• Letter to Trump: Navajo Nation leaders have sent Trump more than one requesting Mitchell's sentence be commuted. An excerpt: "Our justice system is based on life—Iina—that is sacred and must be protected. We therefore condemn murder and abhor the crimes committed in this case. But our belief system requires us to seek harmony and restore not only the victim, but also to restore the broken relations between families and communities so we all may heal."
• In favor of death: The AP reports that among the Navajo people, the desire to see Mitchell's life spared is far from unanimous. Tiffany Lee's father, Daniel Lee, said in an interview that he believes in the idea of "an eye for an eye" and wants to see Mitchell executed. He further said Navajo leaders don't speak for him: "I speak for myself and for my daughter."
• A deep dive: For more on the case, read this piece by the Intercept. It includes the recollections of John Fontes, the vocational director of the Rough Rock Community School in Chinle, Ariz., where Mitchell had graduated as valedictorian the year prior to the murders—despite an upbringing filled with abuse and addiction. Fontes managed to get in two six-hour visits with Mitchell this month.
• Numbers: The AP notes that if Mitchell is executed tonight, 2020 will have seen more federal inmates executed than in the prior 56 years combined. There are currently 58 men and one woman on federal death row.

(More death penalty stories.)