Thursday, September 6, 2007
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Panel Upholds Death Sentence in Navajo Reservation Killing
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the death sentence of a Navajo man in the first case under federal law imposing the death penalty upon a Native American for crimes against other Native Americans.
Judge Pamela Ann Rymer found that District Judge Mary H. Murguia of the District of Arizona had not erred in sentencing Lezmond Mitchell to death under the Federal Death Penalty Act for his role in a carjacking that resulted in the October 2001 death of a Navajo woman and her granddaughter on the Navajo reservation.
In October 2001, Mitchell, then aged 20, Jason Kinlicheenie, Gregory Nakai and Jakegory Nakai decided to rob the Red Rock Trading Post, a convenience store and gas station located on the Arizona side of the Navajo Indian reservation. On October 28, 2001 Mitchell and Johnny Orsinger, aged 16, set out from Round Rock, Arizona, for Gallup, N.M., to look for a vehicle they could steal to use during the robbery. Hitchhiking back to the reservation, they were picked up by Alyce Slim, aged 63, who was returning from Tohatchi, New Mexico with her nine year-old granddaughter, Jane Doe in her double cab Sierra GMC pickup truck.
Slim stopped near Sawmill, Arizona, to let Mitchell and Orsinger out of the car, but Orsinger started stabbing her with a knife and Mitchell joined Orsinger. The pair ultimately stabbed Slim 33 times. Mitchell and Orsinger then pulled Slim’s body into the backseat and then drove the truck some 30-40 miles into the mountains with Doe beside her grandmother’s body. There, Slim’s body was dragged out, and Doe was ordered out of the truck and told by Mitchell “to lay down and die.”
Mitchell cut Doe’s throat twice, but the wounds were not fatal, so he and Orsinger then dropped twenty-pound rocks on Doe’s head, killing her. The two then left the site and returned with an axe and shovel. Mitchell dug a hole while Orsinger severed the heads and hands of Slim and Doe. Together, they dropped the severed body parts into the hole and covered them, pulled the torsos into the woods, and burned the victims’ clothing, jewelry, and glasses.
Three days later, Mitchell, Kinlicheenie and Jakegory Nakai donned masks and drove Slim’s truck to the Red Rock Trading Post, where they robbed the trading post at gunpoint, using a 12-gauge shotgun and a .22 caliber rifle. The gunmen struck the store manager with one of the firearms, tied up the manager and another store clerk in a vault room of the trading post, and made off with $5,530 in cash. They then drove back to Kinlicheenie’s car and he followed the truck to a place about a mile and a half south of Wheatfields, Arizona, where Mitchell set fire to it using kerosene stolen from the trading post. The gunmen then returned to the Nakai residence and split the money, Mitchell receiving a total of $300 from Kinlicheenie.
Witnesses outside of the trading post, as well as the clerk, identified the getaway vehicle, and fingerprint and DNA evidence later linked Mitchell and the others to the robbery and the murders. Upon his arrest by Navajo Tribal Police, Mitchell confessed to his role in the slayings and the robbery, and was subsequently convicted in May, 2003 of first degree murder; felony murder, robbery; carjacking resulting in death; kidnapping; felony murder, kidnapping; and several robbery-related counts.
Mitchell advanced a host of arguments in support of his appeal, contending, among others, that the U.S. District Court lacked jurisdiction to try and sentence a Native American to death for crimes occurring on Native American soil; that Native Americans were underrepresented and improperly excluded from the jury; that his legal rights were violated during the criminal investigation; that certain items of evidence were improperly admitted at trial; that prosecutors and witnesses engaged in improper conduct during various phases of the trial and sentencing; that Mitchell was improperly allowed not to attend the sentencing phase; and that the death penalty itself was unconstitutional as applied to him.
However, the Court of Appeals found Mitchell’s contentions without merit, noting that Mitchell had failed to support many of his assertions, and finding that any misconduct on the part of prosecutors or witnesses had not tainted the outcome of the proceedings. As a result, Judge Barry G. Silverman joined Judge Rymer in affirming the decision of the District Court, and upheld Mitchell’s death sentence.
In a dissent, Judge Stephen Reinhardt said that Navajo tribal agents had obtained Mitchell’s confession unlawfully in violation of his rights. Judge Reinhardt also cited the removal of an African-American from the potential jury pool; the defendant’s physical absence from the sentencing phase; improprieties on the part of the prosecution and witnesses at the sentencing phase; and that the District Court had provided the jury with erroneous instructions as to the burden of proof. As a result, the Judge stated that he thought that the sentencing errors, when considered cumulatively, were sufficiently prejudicial that Mitchell’s death sentence should be vacated.
The case is United States v. Mitchell, Case No. 03-99010.
Copyright 2007, Metropolitan News Company