When John Fontes found out that his former student Lezmond Mitchell had been involved in a grisly double murder in the fall of 2001, he could not believe what he was hearing. At the Rough Rock Community School in Chinle, Arizona, where he was the vocational director — and where Mitchell had graduated just one year earlier — Fontes had been struck by his growth and potential. Yet the details of Mitchell’s crime were “horrible, beyond comprehension,” Fontes recalled. “When I first heard of it, I was in disbelief.”
Mitchell had just turned 20 when he was arrested alongside a teenager named Johnny Orsinger for the gruesome killings of a 63-year-old woman named Alyce Slim and her 9-year-old granddaughter, Tiffany Lee. The young men and their victims were all Navajo; Slim had been taking her granddaughter to see a medicine man in New Mexico when they were attacked. Prosecutors would describe how, after stabbing Slim more than 30 times, the killers put her body in the backseat with her granddaughter and drove into the Chuska Mountains north of Window Rock, the capital of the Navajo Nation. There, they murdered the child and decapitated the bodies.
The Navajo Nation had long opposed capital punishment, but the federal government sought a death sentence against Mitchell anyway. At the request of George W. Bush’s Department of Justice, the 2003 trial was moved to Phoenix, where 11 white jurors and one Navajo juror found him guilty on numerous counts. Fontes agreed to be a witness at the sentencing phase, which would determine whether his former student would live or die. In an affidavit years later, Fontes described how Mitchell’s defense attorneys met with him only briefly on the day he was scheduled to testify. In lieu of any real preparation, they showed him photographs of the victims’ mutilated remains. Nevertheless, Fontes took the stand to convince the jury to spare Mitchell’s life.
Fontes had not been especially close to Mitchell. But he’d seen real promise in him. Mitchell had transferred to Rough Rock for his junior year from a school in Red Mesa, Arizona, where his family life had been fraught and unstable. Mitchell never knew his father, and his mother left him in the care of her parents, who were volatile and abusive. A clinical psychologist who examined Mitchell said he was “distressed about family conflict” and felt lost and abandoned to the point of being suicidal. Without intensive therapy or even inpatient treatment, “he could be in serious jeopardy.”
“Lezmond had had some disciplinary issues,” Fontes recalled. But this wasn’t unusual at Rough Rock, where the surrounding community was beset by poverty, alcoholism, and high rates of violence. Fontes’s approach to his students was “We’re gonna take them as they are when they come here.” This wasn’t just his philosophy, it modeled that of the school’s founder, Dr. Robert Roessel, a lifelong advocate of the Navajo people (and later an advocate for Mitchell during his sentencing). When it opened in the 1960s, Rough Rock was the first school under the control of the Navajo Nation, part of a broader educational movement that sought to redress generations of abuse at the hands of the federal government and allow for greater self-determination among Native youth.
Fontes saw Mitchell flourish in his time at the school. He joined the student council, pushing for a school football team and healthier snacks in the vending machines. “We did a garden landscape project out in front of the high school that was pretty extensive, with picnic tables and raised terraces, garden beds,” Fontes said. “And he was instrumental in that during his senior year, in getting students motivated to work on it, even after school hours.” Mitchell graduated as senior class president and valedictorian, delivering a rousing speech. After his arrest, there was a sense of disgust and betrayal. One teacher confronted Fontes and said something like, “‘What do you think about him now, this student you held in such high regard?’” Fontes recalled. “Like it tainted the school, that one of their graduates was involved in a terrible homicide.”
Mitchell had been on death row for a couple of years when Fontes decided to go see him at the federal penitentiary in Terre Haute, Indiana. “Part of it was, I was trying to seek the truth,” he said. How could a young person whom he’d never known to be violent do something so horrible? Although Fontes does not remember all the details of that visit, he recalls that Mitchell told him he was not the one who killed Slim or her granddaughter.
Mitchell expressed remorse for his role in the crime. Although he did not want to discuss with Fontes what he did or didn’t do, he insisted that if he could win a new trial, he would not be reconvicted of murder. The lack of answers did not stop Fontes from continuing to see him. Over the next decade and a half, their relationship deepened. “I came to believe — and I still do to this day — that he didn’t murder anyone,” Fontes said.
On July 29, the Trump administration announced an execution date for Mitchell. Two weeks later, Fontes was driving home from Terre Haute when I reached him on his cellphone. Despite the restrictions on visitation during the coronavirus pandemic, he had been able to spend the previous two days with Mitchell; two six-hour visits, back to back. “I went to visit him because I know that time is of the essence,” he said.
Over the years, Fontes and his former student had talked about all kinds of things in their visits, from philosophy to history to artificial intelligence. This time, “we discussed personal matters and also legal matters,” Fontes said. “He still maintains hope for some type of clemency … but he knows that’s a really difficult challenge.”
After he got home, Fontes spent some time looking at the old Rough Rock yearbook from 2000, Mitchell’s senior year. On one page, students had been asked to share a memory about their time at the school. One answered: “Being in the wrong place at the wrong time and getting suspended by Mr. Fontes.” It made him chuckle. “That’s been my philosophy on a lot of things in life,” he said. “If you’re in the wrong place at the wrong time, something bad can happen.”
Rights and Wrongs
If the Trump administration gets its way, Mitchell will be executed on August 26, becoming the fourth man to be killed this year inside the federal death chamber in Terre Haute. Just last month, the U.S. government carried out three executions in one week — the first federal executions in 17 years. Apart from Mitchell, three more men are scheduled to die between August and September, with new execution dates rumored to be on their way.
Although the federal execution spree is unprecedented in modern death penalty history, it is just the latest in a string of actions meant to bolster Trump’s law-and-order image. Last week Attorney General William Barr announced that the DOJ would do “whatever’s necessary” to ensure the execution of Boston marathon bomber Dzhokhar Tsarnaev, whose death sentence was overturned earlier this month.
Trump is not the first politician to leverage the death penalty in an election year. But the pandemic has exposed the executions as a needlessly reckless ordeal. Last month, a prison staffer involved with the planning tested positive for Covid-19, a reminder of the risks to the surrounding community. Although there is no evidence to show that the executions were the “superspreader” events many feared they would be, the American Civil Liberties Union filed a Freedom of Information Act request earlier this month seeking information on the impact of the executions in Vigo County. “In the weeks prior to the execution, Indiana was not seeing a spike in confirmed cases,” the ACLU wrote. “Today, after the three back-to-back executions, Vigo County, where Terre Haute is located, has seen a major surge.”
As with the men who were executed last month, Mitchell’s case contains a number of red flags and lingering questions. One is the issue of his culpability. Mitchell had no history of violence at the time of his crimes; in a clemency petition submitted last month, Mitchell’s attorneys pointed to his prosecutor’s own words to show that Orsinger, Mitchell’s co-defendant — who had previously killed two people — was “the lead instigator.” Assistant U.S. Attorney Vincent Kirby told the judge at a 2015 resentencing hearing in Orsinger’s case that it was the teenager who fired the first gun. “He stabs Alyce. He drops the first rock on Tiffany. He’s always the instigator in the face of adults. He should not walk in his community again.”
After being taken to a Navajo jail, Mitchell was held for 25 days without access to a lawyer and repeatedly interrogated by the FBI.
Yet Kirby made clear at the same hearing that he did not believe Mitchell was any less responsible. “Orsinger and Mitchell have engaged in the blame game of now pointing the finger at the other one as to who did what,” he said. “It’s not surprising at this late stage they cannot accept responsibility for what they did.”
It is not unusual for cases involving multiple defendants to lack clarity about who was the more culpable actor. Under the law, it doesn’t really matter; plenty of people have been sentenced to die for a murder carried out by somebody else. But Mitchell’s case is unusual and revealing in other ways. Attorney General John Ashcroft took extreme measures to win a death sentence against Mitchell, beginning with his arrest on a tribal warrant on November 4, 2001. After being taken to a Navajo jail, Mitchell was held for 25 days without access to a lawyer and repeatedly interrogated by the FBI. He waived his rights and admitted to the crimes.
Mitchell’s previous attorneys argued that his inculpatory statements should not have been allowed at trial. In 2007, 9th Circuit Court of Appeals Judge Stephen Reinhardt decried the government’s conduct in Mitchell’s case, including two FBI agents who “acknowledged that they were aware that taking a suspect into tribal custody would mean that he would not be entitled to certain federal rights, such as the right to appointed counsel and the right to a prompt arraignment.”
Finally, there were problems that are all too common among capital cases. Appellate records show that Mitchell’s trial attorneys failed to investigate key aspects of the case. They called no defense witnesses during the first part of the trial, appearing to accept the government’s assessment of the physical evidence at face value. After the jury found Mitchell guilty, they failed to present the crucial findings of a mitigation specialist who had uncovered a considerable history of trauma and abuse that could have swayed jurors to spare his life. In their closing, federal prosecutors cast Mitchell’s sentencing trial as an indulgence he did not deserve. “Perhaps years ago, [in] Tombstone, he would have been taken out back, strung up,” one assistant U.S. attorney said. “He would have gotten a trial, nothing like this. We have been at this for seven weeks. … You have made your findings. And yet still he gets to come before you and say, ‘Spare my life.’”
“To establish racial bias, he must investigate; to be permitted to investigate, he must establish racial bias.”
The allusion to lynching and the Old West hinted at another question that has never been fully addressed in his case: whether Mitchell’s death sentence was driven in part by racial bias. If Mitchell had been tried at the state level in Arizona, appellate attorneys could have investigated the matter by interviewing the jurors who sent him to die. But such interviews are largely forbidden in the federal death penalty system. The District of Arizona is one of 58 federal jurisdictions in which parties must ask a district court for permission before interviewing jurors after trial. In Mitchell’s case, the court has determined that he did not show “good cause” for such interviews. Attorneys for Mitchell have repeatedly described his position as a Catch-22: “to establish racial bias, he must investigate; to be permitted to investigate, he must establish racial bias.”
Last week, Mitchell’s attorneys submitted a petition for a writ of certiorari to the U.S. Supreme Court asking the justices to consider this problem in light of a 2017 decision dealing with juries and racial bias. As with so many aspects of capital punishment, the dilemma lays bare the arbitrariness of Mitchell’s position: how being in the wrong place could seal his fate. “Had Mitchell been tried a short distance away in the District of New Mexico,” the petition points out, he would not have had to seek permission to interview trial jurors. In fact, the attorneys wrote, of the four men under a federal death sentence from within the 9th Circuit, only Mitchell finds himself in this predicament. One defendant was sentenced in the District of Idaho, while the two others came from the Central District of California. Neither jurisdiction bars parties from interviewing jurors. “But Mitchell, the only person of color amongst this group of four, shall go to his … execution not knowing the extent to which racial bias influenced his jury.”
Ignored and Dishonored
On July 31, Navajo Nation President Jonathan Nez sent a letter to Donald Trump. “On behalf of the Navajo Nation, we strongly encourage you to consider leniency for Lezmond Charles Mitchell,” he wrote, asking the president to commute Mitchell’s sentence to life in prison.
It was not the first time such a letter had been written. “On a number of occasions, since 2002, the Navajo Nation Attorneys General, the Navajo Nation Council Standing Committee, and the Navajo Nation Chief Justice informed the U.S. Attorney for the District of Arizona of the Navajo Nation’s opposition to the death penalty in Mr. Mitchell’s case,” Nez wrote. Most importantly, he added, “we understand the daughter and mother of both victims attested and strongly opposed the death penalty in Mr. Mitchell’s case and specifically requested the U.S. Attorney not to seek it. The Navajo Nation and the family of the victims have not changed their position.”
The stubborn insistence of the federal government in seeking death against Mitchell has garnered renewed outrage in advance of his execution date. “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,” Mitchell’s lawyers point out. Then-U.S. Attorney Paul Charlton did not wish to seek the death penalty in the case, but he was overruled by Attorney General John Ashcroft, whose zeal for capital punishment led him to repeatedly override decisions made by his own federal prosecutors. Under Ashcroft, non-death penalty states saw their first capital prosecutions in decades.
Because tribal sovereignty bars U.S. states from prosecuting homicides on Native reservations, murders and other serious crimes that take place on Native land have long been handled under the 1885 Major Crimes Act, which gives the federal government jurisdiction over such offenses. As Congress began to broaden the category of homicides punishable by death in the 1980s — beginning with the Drug Kingpin Act — tribes began to worry that their citizens would be disproportionately targeted for the death penalty.
Unable to seek a death sentence for the murders, the DOJ found a loophole that would make Mitchell eligible for execution.
In a widely reprinted op-ed for the Washington Post in 1989, as U.S. lawmakers sought to dramatically expand capital punishment through a precursor to the 1994 Federal Death Penalty Act, assistant federal public defender Jon Sands and another Phoenix attorney wrote that “more than 50 percent of all murders prosecuted within federal jurisdiction are committed by Indians on reservations. As a result the act would single out Indian murder defendants for the special sentence of death.” Testifying before the Senate Judiciary Committee that year, Tova Indritz, the federal public defender for the District of New Mexico, said the law should be called the “Indian Death Penalty Act” for how it would target Native defendants.
These concerns ultimately shaped the Federal Death Penalty Act in a critical way. While the law created dozens of newly death-eligible crimes, U.S. Sens. Daniel Inouye of Hawaii and Pete Domenici of New Mexico carved out an important bipartisan provision that was designed to protect tribal sovereignty. It prohibited the DOJ from seeking the death penalty for murders prosecuted under the Major Crimes Act without the explicit consent of the tribe in question. Native officials would have to “opt in” to allow a capital prosecution.
When Slim and her granddaughter were murdered, the Navajo Nation made clear that it would not opt in to allow a capital prosecution. In response, the federal government flagrantly violated the spirit of the tribal opt-in provision. Unable to seek a death sentence for the murders, the Ashcroft DOJ found a loophole that would make Mitchell eligible for execution. Since Mitchell and Orsinger had stolen Slim’s truck, Mitchell could be prosecuted under federal law for a carjacking resulting in death — an offense that does not fall under the Major Crimes Act but was made death-eligible under the Federal Death Penalty Act. (Mitchell’s co-defendant, a juvenile, was not eligible for the federal death penalty.)
If the federal government’s conduct was a clear abuse of power, not everyone in the Navajo Nation opposed the death penalty for Mitchell. The murders of Slim and her granddaughter were part of a string of brutal homicides on Navajo land around that time. “There was a lot of hue and cry by a lot of community members that wanted the death penalty applied” in some of those cases, said Kathleen Bowman, the head of the Navajo Nation’s public defender office.
In the fall of 2003, just months after Mitchell was sentenced to die in Phoenix, the Public Safety Committee of the Navajo Nation held a series of public hearings in New Mexico and Arizona. One was held in Fort Defiance, which was home to Mitchell’s victims. “The purpose of the hearings,” according to a subsequent report, “was to allow full public input on the question of whether the Nation should allow federal prosecutors to pursue capital punishment for first degree murders that occur on tribal lands.” Among the witnesses who spoke in Fort Defiance was Marlene Slim, the daughter of Alyce Slim and the mother of Tiffany Lee, who described how her pleas to the federal government in opposition to the death penalty had been “ignored and dishonored.”
Bowman also spoke, not only as a lawyer and anti-death penalty activist but also as a Navajo woman who had lost several family members to murder. Two of the murders were never solved. When the committee issued a report on the hearings the next year, it recommended that the Navajo nation reject the federal death penalty and “establish a program to provide grief counseling and direct service assistance” to victims’ families.
In recent months, Bowman has signed letters in opposition to Mitchell’s execution. But she has been struck by the relative lack of controversy about it outside the legal community. “It’s a hard issue,” she said. “I think a lot of people were incensed at the time of how that murder was committed and how heinous it was.” But also, like most Americans, citizens of the Navajo Nation are struggling with problems that feel far more pressing. The pandemic has devastated Navajo communities; on the day we spoke, Bowman said, she had a family member on a ventilator. “I’m having a hard time just even dealing with that and trying to work at the same time.”
But people also don’t realize how flawed the death penalty is, Bowman said. As an activist, she spent years repeatedly explaining the high costs of capital punishment, a reality that many people still don’t understand. If the federal government truly wanted to invest in public safety, the needs within her community are overwhelming. “Many Navajo people who live on the reservation don’t have running water, don’t have electricity, don’t have Wi-Fi,” she said. With the virus threatening to spread among school children, Navajo youth are especially vulnerable. “I mean, how could the kids even keep up with school if they don’t have Wi-Fi?”
Waiting for Justice
On August 21, the Navajo Times ran a startling headline about Mitchell’s looming execution. Contrary to previous reports, it said that relatives of the victims supported carrying out his death sentence. “Mr. Mitchell’s attorneys or advocates and the Navajo Nation do not speak for these victims and have not accurately expressed their wishes as it relates to imposition of sentence upon Mr. Mitchell,” said Krista Wood, a former federal prosecutor representing a group called Arizona Voice for Crime Victims.
The story did not say whether Marlene Slim had had a change of heart. (Slim did not respond to my messages.) But in an email to The Intercept, Wood sent the full statement, which named both Slim and Daniel Lee, the father of Tiffany Lee, as supporting the “government’s efforts to impose the death penalty on August 26, 2020.” On Sunday, the Associated Press ran a report on the enduring impact of the crime on the community, which quoted Daniel Lee. “He took my daughter away, and no remorse or anything like that,” Lee said about Mitchell. “The Navajo Nation president, the council, they don’t speak for me. I speak for myself and for my daughter.”
Wood said that Lee plans to attend the execution. “His attendance comes after nearly 19 years of waiting for justice for the horrific murder of his daughter,” she wrote. As for Mitchell, he has not asked Fontes to attend. In their last visit, Mitchell gave him “the old high five against the glass window” while Fontes told him to let him know what else he could do to help. None of Mitchell’s family members plan to come to Terre Haute either, Fontes said. As he understands it, Mitchell never wanted anyone to see him in that place.
“Ashcroft should have kept his nose out of the reservation’s business.”
Even those relatives who were close to Mitchell lost touch after he went to death row. In a phone call last week, his uncle Auska Kee Mitchell said he had not spoken to his nephew in years, but he shared fond memories of Mitchell. He was always good with his children, Auska said. He sent along some photographs. In one, taken when Mitchell was about 17, he holds Auska’s 2-year-old daughter.
Auska never knew what to think about Mitchell’s role in the crime. But he knew that he had struggled after graduation and started drinking and doing drugs more heavily. He recalled telling Mitchell’s lawyers that Orsinger was a disturbed individual — people were “scared to death” of him, he said. Auska echoed what Fontes described in his affidavit: how Lezmond’s attorneys did not prepare him for testifying at the sentencing but did show him graphic photographs of the victims before he took the stand. He was suspicious of the 25 days his nephew spent in custody without a lawyer. A person who is interrogated like that “will confess to anything.”
“Ashcroft should have kept his nose out of the reservation’s business,” he said. He was not surprised that the federal government was so willing to violate the sovereignty of the Navajo Nation. But he resented the resources spent on the executions at a time when so many are suffering. “It just drives me crazy,” he said. There are people who can’t pay their mortgages or feed their kids. “There’s so much damn government waste.”
Finally, it bothered him that the government would insist on pushing through executions in the middle of a pandemic that poses a threat to families like his. The execution of his nephew won’t make anyone safer. But it could risk more people’s lives. “Why are they doing this now?”