The Supreme Court on Tuesday night declined to block the execution, scheduled for Wednesday, of Lezmond Mitchell, the only Native American on federal death row. The justices, without any noted dissents, denied two emergency requests from Mitchell seeking to postpone the execution. Mitchell had argued that he should be given the opportunity to interview his jurors about potential bias during deliberations and that the government’s planned lethal injection protocol violates federal law.
If the execution goes forward, Mitchell will be the fourth federal inmate executed this year after nearly two decades in which the federal government did not carry out the death penalty. Three additional federal executions are scheduled before the end of September.
Mitchell, a Navajo man, was convicted and sentenced to death in 2003 for the carjacking and stabbing deaths of Alyce Slim and her nine-year-old granddaughter, who were also members of the Navajo Nation. At Mitchell’s trial, prosecutors told jurors – all but one of whom were white – that, in the Old West, Mitchell “would have been taken out back” and “strung up.”
Mitchell asked to reopen his post-conviction proceedings two years ago to interview the jurors about whether their deliberations were tainted by racial bias. He argued that he had that right after the Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado, which created an exception when there is evidence of racial bias to the general rules prohibiting jurors from testifying about statements made during deliberations that might call a verdict into question. But a federal trial court rejected his request, and the U.S. Court of Appeals for the 9th Circuit upheld that ruling.
Mitchell came to the Supreme Court last week, asking the justices to block his execution and take up the question of whether, in death penalty cases, district courts can bar inmates from interviewing jurors about racial bias during deliberations.
The federal government urged the justices not to intervene. Peña-Rodriguez, the government stressed, does not allow inmates to conduct a “fishing expedition” “into juror deliberations from 17 years ago based solely on unsupported speculation.” Instead, the government argued, the court in Peña-Rodriguez “recognized a limited racial-bias exception” to the general rule against allowing juror testimony to call a verdict into question. Mitchell can rely on the exception created by Peña-Rodriguez, the government contended, only if he can show that at least one juror was racially biased – which he has not.
Mitchell filed a separate request on Sunday to block his execution to give the justices time to weigh in on a dispute over the interpretation of the Federal Death Penalty Act, which requires the federal government to carry out executions “in the manner prescribed by the law of the state in which the sentence is imposed.” The federal courts of appeals, Mitchell told the justices, have divided on the extent to which this provision requires the federal government to incorporate execution procedures outlined in state laws, regulations and protocols. But the correct interpretation, Mitchell argued, is that federal officials must “implement executions as state officials are bound to implement them,” which means not only that the federal government must use the same method of execution (for example, lethal injection versus hanging), but also the same manner of execution. Mitchell, who was tried and sentenced in Arizona, argued that the government’s lethal-injection plan differs from Arizona’s own lethal-injection procedures. The 9th Circuit, however, ruled against Mitchell after federal prison officials promised that his execution would comply with Arizona’s procedures in four key ways.
Mitchell also pushed back against any idea that his request to stay his execution was a “last-minute attempt to manipulate the judicial process.” Any blame for the emergency nature of his appeal should go to the government, he suggested, which “manufactured urgency when it chose to set an execution date with just 28 days’ notice.” Moreover, Mitchell added, permitting the federal government to “now rush toward an execution disserves the public by turning the solemn undertaking of an execution into a disgraceful scramble.” Last month’s executions of Daniel Lee and Wesley Purkey were, Mitchell observed, “utterly chaotic” as a result of the government’s “attempt to cut corners and meet its own schedule instead of following court orders.”
In two orders on Tuesday night, the Supreme Court rejected both of Mitchell’s requests. No justices publicly dissented, but Justice Sonia Sotomayor attached a short statement arguing that the court should soon resolve the dispute in the lower courts over how to interpret the Federal Death Penalty Act. Mitchell’s case was not the right vehicle for the court to resolve that dispute, Sotomayor wrote, because the 9th Circuit assumed an interpretation that was favorable to Mitchell but still denied him relief. “But with additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” Sotomayor continued. “I believe that this Court should address this issue in an appropriate case.”
This post is also published on SCOTUSblog.