Alyce Slim, David Begay, Jesbert Sam, and Tiffany Lee

Murders of David and Jesbert

Victims: David Begay, 47, & Jesbert Sam, 30

Murderers: Gregory Nakai, 20, & Johnny Orsinger, 16, along with accomplices Jimmy Nakai Jr., 23, Jakegory Nakai, Teddy Orsinger, 34, and Dennie Leal

Crime location: Navajo Nation

Crime date: August 17, 2001

Murders of Tiffany and Alyce

Victims: Alyce Slim, 63, & Tiffany Lee, nine

Murderers: Lezmond Mitchell, 20, &  Johnny Orsinger, 16

Crime location: Navajo Nation

Crime date: October 28, 2001

The Crimes

August 17, 2001

First names of the perpetrators are used in this description, not to express familiarity to any of the killers, but to identify them, as several shared last names.

Gregory, Jimmy, and Jakegory Nakai, all brothers, went to Round Rock Lake to sell bottles of beer. They were joined by Johnny Orsinger, Teddy Orsinger, and Dennie Leal. The men sold several bottles to Jesbert Sam and David Begay.  At some point, Gregory said, “Let’s jack up these guys,” which Jimmy understood to mean that they should beat Jesbert and David and take their car.  When David tried to buy another bottle, the men jumped on him and hit him and Gregory knocked him down. As David lay on the ground Jakegory and Leal kicked him.

As Jesbert sat in his car, Leal came up to him and knocked him onto the ground. Leal and Johnny hogtied both victims with electrical cords. The bound victims were then dumped into the back of Jesbert’s car. Jimmy and Johnny then drove off with Jesbert and David, abducting them. During the drive, Johnny pistol whipped Jesbert about 10 times. Teddy followed Jimmy and Johnny in Gregory’s car, accompanied by Gregory, Jakegory, and Leal. Teddy accidentally flipped the car. Gregory then got into Jesbert’s car with Jimmy and Johnny. Teddy, Jimmy, and Johnny drove the two victims into the woods. David, who was still conscious, was taken out of the car by Johnny. Jesbert, who had ceased moving, was taken out of the vehicle by Gregory. Johnny and Gregory laid the victims on the ground. They then executed both victims. Johnny shot David in the head and then gave the gun to Gregory, who shot Jesbert five times in the chest and/or head. The group of assailants burned the men’s bodies and buried them in a shallow grave.

October 28, 2001

Alyce

While on their way to visit a traditional Native American medicine person, Alyce, 63, and her nine-year-old granddaughter Tiffany came across two hitchhikers, whom they let into their vehicle. Unbeknownst to them, these two men–20-year-old Lezmond Mitchell &  16-year-old Johnny Orsinger– were intent on robbing them of their truck. When Alyce tried to drop the men off they attacked her and stabbed her 33 times. The assailants forced Tiffany into the back of the truck and placed her grandma’s dead body there. They abducted the child and drove her into the Chuska Mountains. During the approximately 30-40 mile drive, the child was forced to sit next to her dead grandmother, in what was undoubtedly a terrifying experience. In the Chuska Mountains the kidnappers ordered her out of the vehicle. The murderers had decided to end Tiffany’s young life to avoid being caught. Mitchell told her to “lay down and die” and cut her throat twice. When Tiffany managed to live, Orsinger and Mitchell dropped large rocks on her head and killed her. The killers then dismembered and concealed the bodies.

October 31, 2001

Mitchell, Jakegory, and another man later committed a violent robbery at a trading post. See below.

Sentences

Info on the incarceration statuses comes from the Federal Bureau of Prison’s inmate locator.

Jimmy, Teddy, and Leal plead guilty. Teddy was released in 2008 and Jimmy was released in 2015. Leal is at Yazoo City Medium FCI and will be released in 2029. Jakegory is at Thomson USP and will be released in 2024.

Orsinger and Gregory Nakai were sentenced to life in prison and are at Atlanta USP and USP Coleman II, respectively. Mitchell was sentenced to death. He was incarcerated at Terre Haute USP and was executed on August 26.

More Details

United States v. Orsinger

Johnny Orsinger asks this Court to vacate his life sentences for four murders and to remand for re-sentencing. The facts of this case are known to the parties, and we do not repeat them here. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I

Orsinger argues that the district court erred at his re-sentencing by failing properly to consider his claim that he was not permanently incorrigible and hence ineligible for a life sentence under Montgomery vLouisiana136 S. Ct. 718, 734 (2016), which held that Miller vAlabama567 U.S. 460, 472 (2012), bars a sentence of life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Although the district court did not use the specific word “incorrigible,” it did recognize that Miller permits life sentences for juvenile offenders only in “uncommon” cases, 567 U.S. at 479, and the court made a finding that Orsinger did indeed fit within that “uncommon” class of juvenile offenders. That conclusion was appropriately supported by a detailed consideration of the evidence viewed through the light of the factors identified in Miller and in 18 U.S.C. § 3553(a).

Orsinger also takes issue with the district court’s focus on the heinous nature of his crimes. It is true that the heinousness was a key part of the court’s analysis, but Miller allows—and in fact expects—a sentencing court to consider the nature of the offense as part of its analysis. 567 U.S. at 479-80 (tasking sentencing judges with differentiating between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”) (emphasis added) (quoting Roper vSimmons543 U.S. 551, 573 (2005)). There was thus no error in the district court’s considering the heinousness of the crimes.

II

Orsinger also argues that his sentence violates the Eighth Amendment because he is, in fact, not one of the incorrigible juvenile offenders for whom a life sentence is permissible. He specifically points to evidence of rehabilitation that he believes establishes he is not incorrigible. The district court did consider the evidence that Orsinger had improved himself while imprisoned, but it did not find that sufficient to outweigh the countervailing evidence that Orsinger was one of the uncommon juvenile offenders for whom a life sentence was warranted. Orsinger is correct that he put forth evidence of rehabilitation, but we are persuaded that there are, at the very least, “two permissible views of the evidence” as to his incorrigibility, so “the factfinder’s choice between them cannot be clearly erroneous.” Anderson vCity of Bessemer City470 U.S. 564, 574 (1985)

AFFIRMED.

United States v. Orsinger, No. 15-10412, 2-4 (9th Cir. Oct. 6, 2017)

UNITED STATES v. MITCHELL

I

In October 2001, Mitchell, then 20 years old, Jason Kinlicheenie, Gregory Nakai and Jakegory Nakai decided to rob a trading post on the Arizona side of the Navajo Indian reservation.   Mitchell and 16 year-old Johnny Orsinger set out from Round Rock, Arizona, for Gallup, New Mexico, on October 27 to look for a vehicle they could steal to use during the robbery.   They bought one knife and stole another while there.   Hitchhiking back to the reservation, they were picked up by a trucker who took them part of the way.

Meanwhile, on the afternoon of Sunday, October 28, 2001, Alyce Slim (63 years old) and her nine year-old granddaughter, Jane Doe, left Fort Defiance, Arizona to go to Tohatchi, New Mexico where Slim hoped to secure the services of Betty Denison, a traditional medicine person, for leg ailments.   It is a 35 minute drive that the two made in Slim’s pewter-colored double cab Sierra GMC pickup truck. They got to Tohatchi about 4 p.m. Denison was unable to assist her, but thought another medicine woman, Marie Dale, might be able to help.   She, Slim, and Jane drove to Twin Lakes, New Mexico where Slim arranged an appointment with Dale for the next day.   The three returned to Denison’s home where they dropped Denison off around 5 p.m., then Slim and her granddaughter left.   That is the last time they were seen alive.

Somewhere in route, and somehow, Mitchell and Orsinger got into Slim’s truck.   Slim and Jane were in front, Mitchell in the right-rear passenger seat and Orsinger in the left.   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 in.   Slim ended up being stabbed 33 times, both from the left and right, with sixteen incised wounds on her hands that indicated she fought the attack.   Once dead, her body was pulled onto the rear seat.   Jane was put next to her.   Mitchell drove the truck some 30-40 miles into the mountains with Jane beside her grandmother’s body.

There, Slim’s body was dragged out.   Jane was ordered out of the truck and told by Mitchell “to lay down and die.”   Mitchell cut Jane’s throat twice, but she didn’t die.   Orsinger and he then dropped large rocks on her head, which killed her.   Twenty-pound rocks containing blood tied to Jane were found near the bodies.

Mitchell and Orsinger returned to the site with an axe and shovel. Mitchell dug a hole while Orsinger severed the heads and hands of Jane and Slim. Together, they dropped the severed body parts (along with Mitchell’s glove) into the hole, and covered them.   The torsos were pulled into the woods.   Later they burned the victims’ clothing, jewelry, and glasses.   Mitchell and Orsinger washed the blood from the knives in a nearby stream;  the next day, Mitchell also washed the knives with alcohol to remove any blood.

Jane’s mother, Marlene, became concerned when Jane and Slim, who was Marlene’s mother, had not returned home.   She tried to call Slim on her cell phone Sunday night, then the next morning at home, but got no answer.   After checking at Slim’s house and Jane’s school, Marlene filed a missing persons report on Tuesday.

On Wednesday, October 31, 2001, the Red Rock Trading Post, a convenience store and gas station located in Navajo territory, was robbed by three masked men.   Kinlicheenie supplied the masks as well as his parents’ car for use after the truck was abandoned;  Mitchell carried a 12-gauge shotgun, and Jakegory Nakai had a .22 caliber rifle.   Charlotte Yazzie, the store manager, was mopping the floor when one of the robbers assaulted her, striking her with his firearm and pulling her behind a desk.   Watching this, another store clerk, Kimberly Allen, ducked behind shelving.   A second robber saw Allen and pushed her against the counters.   When Allen said she didn’t know the combination to the safe, the gunman told her, “If you lie to me or you don’t cooperate with us, we are going to kill you.”   He told Allen to turn on the gas pump.   As she did, she saw a pickup truck parked outside, which she described as a double cab beige Chevrolet.   Yazzie was taken into a back room where the robbers demanded, and she provided, more money.   Mitchell, Nakai and Kinlicheenie emptied the cash registers and safe and then tied down Allen and Yazzie in the vault room.   They made off with $5,530 and Yazzie’s purse.

The robbers 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. They returned to the Nakai residence and split the money.   Mitchell got $300 from Kinlicheenie.

As it happens, a customer and his girlfriend pulled into the parking lot while the robbery was in progress and saw two of the masked gunmen, one of whom was wearing purple gloves.   The customer also saw a beige, extended cab Sierra or Silverado model truck parked at the fuel tank.   The customer’s girlfriend took down the license plate number and gave it to one of the Trading Post employees.   The next day, a Navajo police officer discovered an abandoned pickup truck a mile and a half south of Wheatfields, Arizona, within the Navajo Indian reservation.   The officer detected the odor of gasoline, and portions of the truck’s interior were burned.   It turned out to be Slim’s 2001 GMC Sierra pickup.   Criminal investigators discovered a purple latex glove and Halloween masks inside the truck, as well as Mitchell’s fingerprints and Slim’s blood.

Based on this information and a tip, investigators focused on Orsinger, Orsinger’s father, Mitchell, Jakegory Nakai and Gregory Nakai, among others.   On the morning of November 4, 2001, FBI Agent Ray Duncan conducted a briefing with criminal investigators and SWAT team officers of the Navajo Department of Law Enforcement.   Tribal warrants were issued and executed at the house of Gregory Nakai.   Mitchell, Jimmy Nakai, and Gregory Nakai were arrested.   Mitchell had been asleep and wore only a t-shirt and shortcuts.   He asked for his pants, which he told an FBI agent were near a bunk bed on the floor.   As the agent was picking them up, a silver butterfly knife fell from a pocket.

Gregory Nakai and his mother, Daisy Nakai, consented to a search of the house.   Two FBI agents, an evidence technician, and a Navajo criminal investigator conducted the search.   They retrieved the silver butterfly knife and found a second butterfly knife with a black handle.   Trace amounts of blood from the silver knife were matched to Slim. The search also turned up a newspaper that had a front page story on the Trading Post robbery, and a cell phone belonging to Slim.

Agent Duncan and a Navajo criminal investigator met with Mitchell at the Navajo Department of Criminal Investigations around 1:30 p.m. Mitchell signed a waiver of his Miranda rights and, after flipping a coin, agreed to talk.   When asked about his whereabouts on the weekend of October 27, Mitchell stated that he had been drinking around Round Rock. He denied being involved in the disappearances and robbery.   Mitchell then agreed to a polygraph examination, which FBI Special Agent Kirk conducted about 5:30 p.m. Mitchell was reminded that his Miranda rights still applied and he signed an FBI consent form after reading it.   Kirk told Mitchell that the test results indicated he had lied.   Mitchell made inculpatory statements about the robbery and agreed to a tape recorded interview after again being reminded of his Miranda rights.   Mitchell admitted his involvement in the Trading Post robbery, and also confirmed that he was present when “things happened” to Slim and Jane. He agreed to help investigators find the bodies.   The interview ended around 11:00 p.m.

Orsinger was arrested the next day, November 5, 2001, and he, too, agreed to take agents to the bodies.   Orsinger had difficulty doing so, and agents called for Mitchell to be brought out. Mitchell directed Navajo police officers to the site.   While there, Mitchell acknowledged to Kirk that his Miranda rights were in effect and agreed to answer more questions.   According to the agent, Mitchell stated that he had stabbed the “old lady,” and that the evidence would show and/or witnesses would say that he had cut the young girl’s throat twice.   Mitchell said he told Jane to “lay down on the ground and die,” and that he and Orsinger then gathered rocks, and with Orsinger leading on, the two took turns dropping them on Jane’s head.   Mitchell indicated that he and Orsinger retrieved an axe and shovel, severed the heads and hands, buried the parts in a foot-deep hole, burned the victims’ clothing, and cleaned the knives in a stream.

Mitchell was returned to tribal jail and taken before a tribal judge on November 7. A federal indictment was issued on November 21, and on November 29 an FBI agent picked up Mitchell from the tribal jail and drove him to the courthouse in Flagstaff, Arizona.   Just before arraignment, agents read Mitchell his Miranda rights and obtained a signed waiver.   Mitchell explained that one to two weeks before the Trading Post robbery, he had talked with Jakegory Nakai about committing a robbery.   He and Orsinger hitchhiked from Round Rock, Arizona to Gallup, New Mexico to purchase liquor and while in Gallup, the two visited a shopping mall where they purchased one knife and stole another.   They caught a ride to Ya Ta Hey, New Mexico, where they were picked up by an older lady and a young girl near the border.   Mitchell asked to be let off near Sawmill, Arizona, and when the truck stopped, Orsinger began stabbing the woman.   Mitchell admitted that he stabbed her four to five times.   They put the older woman and the little girl into the back, and drove into the mountains where they dragged Slim’s body out, threw rocks on the girl’s head, and severed the victims’ heads and hands.   Mitchell said this was Orsinger’s idea, because he would also have severed the feet.

On July 2, 2002, a superceding indictment was returned charging Mitchell and Orsinger with murder;  felony murder, robbery;  carjacking resulting in death;  several robbery-related counts;  kidnapping;  and felony murder, kidnapping.   On September 12, 2002, the government filed a notice of intent to seek the death penalty as to Mitchell based on the 18 U.S.C. § 2119 charge of carjacking resulting in death.   Jury selection began April 1, 2003.   On the same day, the court severed the joint trial of Mitchell and Orsinger. Opening statements were given on April 29, and on May 8, 2003, the jury convicted Mitchell on all counts.

Mitchell indicated that he did not want to be present during the penalty phase, and his attorneys explained to the court that Mitchell had become uncooperative and was breaking off contact with them.   For this reason they felt obliged to withdraw.   After time to reconsider, and extended colloquy, Mitchell stated that he saw no benefit or relevance to being there and wished to waive his presence, but did not have a problem with his attorneys.   Accordingly, the court granted Mitchell’s request not to be present but denied counsels’ request to withdraw.

The penalty phase began on May 14.   The government presented testimony from family members who described what the victims were like and the emotional impact of the murders on them.   The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers.   FBI agent Duncan also testified.   He discussed Mitchell’s confession, noting that Mitchell claimed to have been drinking heavily at the time of the murders.   Duncan also described a separate carjacking and double murder involving Gregory Nakai and Orsinger that took place on the Navajo reservation during which Orsinger pistol whipped the two victims and then shot one of them in the head.   Nakai shot the other victim five times.   See United States v. Gregory Nakai, 413 F.3d 1019 (9th Cir.2005), cert. denied, 546 U.S. 995, 126 S.Ct. 593, 163 L.Ed.2d 494 (2005).   Evidence was introduced that neither Orsinger nor Nakai would receive the death penalty, and that the Navajo Nation did not condone capital punishment in general or for Mitchell’s crimes in particular.

The jury unanimously found all four “gateway intent factors,” each of the statutory aggravating factors, and one non-statutory aggravating factor with respect to both victims.   At least one juror found the existence of each of the mitigating factors.   After weighing the aggravating and mitigating factors, the jury recommended imposition of a sentence of death.   The court imposed that sentence, and this timely appeal followed.

UNITED STATES v. NAKAI

FACTS

At trial, the government established that on August 17, 2001, the defendant Gregory Nakai (hereafter Gregory) and his brothers, Jimmy and Jakegory, all members of the Navajo tribe, had been drinking.   They went to Round Rock Lake to sell bottles of Budweiser beer and were joined by Johnny Orsinger, Teddy Orsinger, and Dennie Leal. They sold several 40 ounce bottles to Jesbert Sam and David Begay.   At some point, Gregory said, “Let’s jack up these guys.”   Jimmy understood his brother to mean that they should beat Begay and Sam and take their car.   When Begay tried to buy another bottle, the group jumped on him and hit him.   Gregory knocked him down with blows to his head.   Jakegory and Leal kicked him as he lay on the ground.

Leal approached Sam as Sam sat in his own car and knocked him from his seat to the ground.   Leal and Johnny Orsinger hog-tied Sam and Begay with electrical cords.   The two victims were dumped in the back of Sam’s car.   Jimmy took the driver’s seat and drove off accompanied by Johnny Orsinger.   Jimmy had with him Gregory’s handgun, which Jimmy gave to Johnny, who pistol-whipped Sam about ten times as they drove.

Gregory, Jakegory, Teddy Orsinger, and Dennis Leal followed Jimmy in Gregory’s car, which he was too drunk to drive and which was driven by Teddy, who accidentally flipped it.   Gregory joined Jimmy and Johnny in Sam’s car, which Jimmy drove into the woods and stopped.   Johnny took Begay, who was still conscious out of the back and laid him on the ground.   Gregory did the same with Sam, who wasn’t moving.   A little later Jimmy heard a shot and turned to see that Begay had been shot in the head and that Johnny was standing next to him with a gun in his hand.   Gregory said, “Give me the gun.”   Johnny gave it to him.   Gregory shot Sam five times in the chest and/or head.   Jimmy believed both Begay and Sam were now dead.   Gregory covered the bodies with a blanket.

Gregory, Jimmy, and Johnny rejoined Leal, Teddy Orsinger, and Jakegory.   The group decided to burn the bodies of the victims and made a fire for this purpose.   They cleaned Sam’s car of broken glass.   Gregory took Sam’s drill and traded it for a pair of tires that he put on his own car.   The next day, Gregory, Jimmy and Leal retrieved some of the remains of one victim, put them in a bag and burned them in a hole.

Six people accused of murdering 4 on Navajo Nation

  • By LARRY HENDRICKS
    Sun Staff Reporter
  • Nov 29, 2001

Six men have been indicted on multiple charges in connection with the discovery of four people murdered on the Navajo Nation in late October and early November.

They were in federal court in Flagstaff Thursday to be assigned court-appointed attorneys and formally read the charges in the indictments that range from murder, carjacking, robbery, kidnapping and using a firearm in a crime of violence.

“We have a very strong case,” said Vincent Kirby, the assistant U.S. attorney prosecuting the six men. He said the six men had connections with each other, but would not elaborate.

The bodies of Fort Defiance residents Alyce Slim, 63, and her 9-year-old granddaughter were found in late October in a wooded area near Tsaile. They apparently were stabbed to death.

And 25 miles from where their bodies were found, the skeletal remains of David K. Begay, 47, of Round Rock and Jesbert Sam, 30, of Pinon, were found Nov. 3 in a shallow grave along Highway 191. Their vehicle had been carjacked, and they allegedly were shot to death sometime in August.

Kirby said the bodies were discovered after authorities received a tip about their whereabouts.

Slim’s stolen pickup was used in an Oct. 31 robbery at the Red Rock Trading Post in Red Valley, where three armed men wearing Halloween masks stole cash and gasoline. One clerk was injured, and another had a pistol held to her head.

Slim’s truck was found on Nov. 1. It had been partially burned.

On Nov. 4 and 5, the Navajo Nation Strategic Reaction Team surrounded the Round Rock residences of the six men and took them into custody.

They are: Teddy Orsinger, 34; Gregory Nakai, 20; Jimmy Nakai Jr., 23; Denny Leal, age unknown; Lezmond Mitchell, 20; and Jason Kinlicheenie, age unknown.

Orsinger, the Nakai brothers and Leal are charged with 18 counts stemming from the murders of Begay and Sam. They allegedly kidnapped, robbed and killed the two men by shooting them and then stole Sam’s Chevy Blazer.

Mitchell is charged with 11 counts stemming from the murders of Slim and her granddaughter as well as the subsequent armed robbery of the Red Rock Trading Post. Kinlicheenie is charged with four counts associated with the robbery of the trading post.

After Mitchell allegedly killed Slim and her granddaughter, he and Kinlicheenie subsequently robbed the trading post with a third suspect, believed to be a juvenile.

The majority of the charges, including murder, upon conviction, carry a sentence of life in prison. The carjacking charges, because a person was killed in order to steal the car, are death penalty-eligible offenses.

Kirby said a decision has not been made whether the death penalty will be sought against the five involved in the carjackings. The Attorney General’s office in Washington. D.C. will make the decision.

A seventh defendant in the case is believed to be a juvenile. Kirby said federal law mandates nondisclosure of any information regarding juveniles involved in the murders.

From October 2000 through July 2001, there were 34 murders reported on the Navajo Nation.

LEZMOND C. MITCHELL, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

In addition to murdering Tiffany and Alyce, Orsinger murdered two others.

The defense also presented evidence that Mitchell had
never before been convicted of a crime, that this offense was
an aberrant act for him, and that Orsinger was the instigator
and actual killer. Defense counsel also showed that the death
penalty for Mitchell would create a terrible sentencing
disparity. Besides this crime, Orsinger and Gregory Nakai
had killed two other individuals during an earlier carjacking.

Orsinger had pistol whipped the victims and shot one victim
in the head. Nakai had shot the other victim five times. Yet,
neither Nakai nor Orsinger, who was a juvenile, would face
the death penalty

8-9

Orsinger and Mitchell murdered Tiffany to avoid being caught. Mitchell was a diagnosed sociopath with a history of animal abuse.

Mitchell’s lawyers had to walk a very careful line to avoid
opening the door to highly damaging evidence contained in
the medical report, such as Mitchell’s diagnosis as a
sociopath, his history of swinging dogs and cats by their tails
and then throwing them off of bridges just for fun, and his
having told Dr. Morenz that he and his accomplice had to kill
the little girl to avoid being caught.

Page 9

Upcoming execution of Native American man stirs emotion within tribe

Late on a fall evening in 2001, Alyce Slim and her granddaughter stopped at a Navajo Nation gas station after searching for a traditional healer for leg ailments.

There, in an area where hitchhiking is common, Slim agreed to give two males a ride. They got into her pewter-colored pickup truck and when she stopped later to let them out, they didn’t budge.

Instead, Lezmond Mitchell and Johnny Orsinger stabbed Slim 33 times and placed her lifeless body next to 9-year-old Tiffany Lee in the back seat as they drove to an abandoned sheep camp. They told Tiffany to prepare to die and slit her throat. She was still breathing, so they dropped rocks on her head, killing her too.

As the 38-year-old Mitchell sits on federal death row, his execution scheduled for Wednesday, the Navajo government is asking officials to spare his life on the basis of cultural beliefs and sovereignty. The stance is pushing up against the wishes of some of the victims’ family for the execution to move forward, including Tiffany’s parents.

“An eye for an eye,” the girl’s father, Daniel Lee told the Associated Press. “He took my daughter away, and no remorse or anything like that. The Navajo Nation president, the council, they don’t speak for me. I speak for myself and for my daughter.”

Under federal law, Native American tribes can decide whether they want their citizens subjected to the death penalty for a set of crimes involving Natives on tribal land. Nearly all 574 federally recognized tribes, including the Navajo Nation, have opted out.

Mitchell was the first Native American sentenced to death since the resumption of the federal death penalty in 1994 and the only Native American awaiting execution. He ended up on death row because he was convicted of carjacking resulting in death — a crime that carries the possibility of capital punishment regardless of where it happens.

His upcoming execution is the first of a handful set after the government said it would carry out executions following an informal 17-year moratorium. The case has stirred emotion among tribal members and painful reminders of the grisly crime.

Mitchell and others used Slim’s truck in an armed robbery. He and Orsinger returned to where they dumped the two bodies, mutilated them and buried some of the remains while dragging others into the woods. They burned the victims’ belongings and washed their knives in a stream nearby.

Days later, tribal police found the truck abandoned in Tsaile, Ariz., where many tribal members make a living by ranching, farming and doing arts and crafts. Mitchell and others tried to torch the truck, but the windows were rolled up and the fire had no oxygen.

“All they did was make a smoky mess on the interior of the truck and leaving all the relevant evidence related to the murder, the carjacking and the robbery behind,” said former FBI agent McDonald Rominger, who worked the case.

Navajo Nation lawmaker Carl Slater, whose grandparents testified against the death penalty in Mitchell’s case, said the details of the crime make defining a just punishment uncomfortable. Still, the tribal government has asked President Trump to grant Mitchell clemency.

“We can never lose sight of the big picture, be forward-looking,” Slater said. “Every action creates precedent, especially when you’re a governing body. This is not just going to impact the Navajo Nation. It’s going to impact all of Indian Country.”

More than a dozen tribal leaders across the country and individual Native Americans have supported the Navajo government’s request.

Federal criminal jurisdiction on tribal land dates back to 1885 and stems from Congress’ displeasure over how one tribal nation settled a killing with restitution to the victim’s family — money, horses and a blanket. The federal authority is still disputed today.

Slim’s daughter and Tiffany’s mother, Marlene Slim, initially opposed putting Mitchell to death. The tribe has used her previous statements in pushing for Mitchell’s sentence to be reduced to life in prison.

This month, attorneys for some of Slim’s family and Lee wrote to tribal officials saying they support the federal government’s efforts to carry out the execution.

“Mr. Mitchell’s actions destroyed this family,” the letter read. “Mr. Mitchell did not consider or have any respect for the Navajo cultural teachings that stress the sanctity of life.”

Mitchell has long maintained he wasn’t the aggressor in the killings. Orsinger, now 35, had a criminal record but was a juvenile at the time and could not be sentenced to death. He is serving life in prison in Atlanta.

Victims’ family supports planned execution of Navajo on death row

Donovan Quintero for the Navajo Times

WINDOW ROCK

The family of Alyce Slim and her nine-year-old granddaughter have issued a statement through their attorney stating they support the execution of the man who brutally murdered the pair.

Krista Wood with the Arizona Voice for Crime Victims sent a brief statement on Friday morning that said surviving Family members support the execution of Lezmond Mitchell, currently scheduled for Aug. 26.

Mitchell was convicted in 2003 and was sentenced to death. He was convicted of the 2001 carjacking and brutal killings of Slim, 63, and her nine-year-old granddaughter. Slim’s vehicle was used in a robbery of a trading post. He is scheduled to be executed this coming Wednesday at the U.S. Penitentiary, a high-security federal prison in Terre Haute, Indiana.

“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,” the family statement read.

A 2004 Navajo Nation Council Public Safety Committee report that was presented at the 20th Navajo Nation Council Summer Session stated the victims’ family, at the time, opposed Mitchell’s death sentence.

The report stated Marlene Slim had told the committee “she was a victim of homicide because both her mother and daughter were murdered in the mountains of Tsaile, Arizona.” The report added Marlene stated, if the tribe opted in, it would “diminish the sovereignty of the Navajo Nation.”

“Her request to the federal prosecutor to have the murderer of her mother and her daughter serve life without parole was ignored and dishonored,” the 2004 committee report stated.

Navajo Nation Council Delegate Carl R. Slater (Round Rock, Lukachukai, Rock Point, Tsaile/Wheatfields, Tsé Ch’izhí) said on Friday the Council has not received any statement from the victims’ family that would indicate they have switched their position.

“I had hoped to not re-traumatize the victims. It pains me that that has occurred,” Slater said.

Even if the family does support the execution, It does not change the relationship between the Navajo Nation and the federal government, Slater added.

“The Navajo Nation never opted in to impose the death penalty,” he said. “It is not the decision of one person or one group of family to make the decision.”

Slater introduced legislation opposing Mitchell’s execution. Slater said the federal government is overstepping its authority and ignoring the sovereignty of the tribe, which traditionally opposes the death penalty,

“The United States made a commitment to the Navajo Nation in the Federal Death Penalty Act of 1994,” Slater was quoted in an Aug. 13 Navajo Nation Council press release.

“If this execution goes forward, the precedent will be set that, no matter the sovereign position of any Indian tribe, the federal government can kill American Indians and Diné, specifically. While this is a justice issue, this precedent will only add another chink in the nation’s sovereign armor.”

Navajo Nation President Jonathan Nez sent a signed letter to President Donald Trump on July 31, asking for leniency for Mitchell.

“The United States Department of Justice sought the death penalty against Mr. Mitchell despite the Navajo Nation’s public opposition, against the express wishes of the victim’s family, and ostensibly against the recommendation of the U.S. Attorney for the District of Arizona,” the July 31 letter to Trump read.

Mitchell petitioned the U.S. Supreme Court on Tuesday asking to delay his execution so he can be given a chance to interview the jury that sentenced him to death. U.S. District Court in Arizona denied his request on Aug. 13.

Mitchell, 38, is the only Native American who is awaiting an Aug. 26 execution date at the federal prison in Terre Haute, Indiana. No time has been set. He has maintained the mostly white jury was biased against him because of his race.

Execution date set for only Native American on federal death row

The country’s sole Native American on federal death row is scheduled to be executed next month, the Department of Justice announced.

Lezmond Mitchell, a Navajo man convicted in the 2001 murder of a Navajo woman and her 9-year-old granddaughter, is scheduled to die by lethal injection on Aug. 26 at the Federal Correctional Complex in Terra Haute, Indiana, where he’s currently housed.

Mitchell’s execution was originally set for December, but an appeals court entered a stay of execution as it resolved an additional appeal by Mitchell that was later unanimously rejected in April. His request for a “full-court rehearing” was also denied earlier this month, Department of Justice officials said Wednesday.

“When the Ninth Circuit stay formally concludes, no legal impediments will bar the execution, and it can occur without further delay,” department officials said in a statement.

Federal prosecutors said Mitchell killed Alyce Slim, 63, and her granddaughter in October 2001 during a carjacking in Arizona.

Mitchell and an accomplice stabbed Slim 33 times and tossed her body into the backseat of her car beside her granddaughter after getting a ride from Slim in her pickup truck, federal prosecutors said.

He then drove the truck up to 40 miles away and ordered the girl to “lay down and die” before slitting her throat and crushing her head with rocks. Mitchell and his accomplice then cut the head and hands off the victims’ bodies and burned their clothes, according to the US government.

The bodies were found in a shallow grave on the Navajo Nation, prosecutors said.

A jury in Arizona later found Mitchell guilty of first-degree murder, felony murder and carjacking resulting in death before he was sentenced to death.

Mitchell’s accomplice, Johnny Orsinger, who was a minor at the time, was also convicted and was sentenced to life in prison, UPI reports.

Wednesday’s announcement follows Attorney General William Barr’s order last July directing the Federal Bureau of Prisons to execute five death-row inmates — including Mitchell –convicted of heinous crimes against children and the elderly.

Mitchell is set to be executed in the same week as Keith Dwayne Nelson, who was convicted of kidnapping and raping a 10-year-old girl in Kansas before strangling her in 1999.

Three other federal inmates convicted of killing children — Dustin Honken, Wesley Purkey and Daniel Lewis Lee — were executed earlier this month.

Tribal officials and even the victim’s family oppose Mitchell’s execution, while his attorneys claim the planned executions “demonstrates the ultimate disrespect for the Navajo Nation’s values and sovereignty.”

The Federal Death Penalty Act prohibits executions for crimes committed on tribal land, UPI reports. But Mitchell’s attorney said in a statement that the government used a “loophole” to charge with a lesser crime — carjacking resulting in death — to seek the death penalty without tribal approval.

If the execution proceeds as scheduled, Mitchell would be the first Native American executed by the federal government in the modern era, UPI reports, citing his attorneys.

Arizona man short-listed for federal execution after killing woman and her granddaughter

For the first time in two decades, the federal government is preparing to execute inmates. And an Arizona man is among the first five on the list.

Lezmond Mitchell, 37, a citizen of the Navajo Nation from Round Rock, was convicted in 2003 of murdering Alyce Slim, 63, and her 9-year-old granddaughter Tiffany Lee.

He is being held at the Terre Haute Federal Correctional Institution in Indiana and is scheduled to be executed Dec. 11. 

Murder and robbery

Sometime in October 2001, Mitchell and three other men decided to rob a trading post on the Arizona side of the Navajo reservation, according to court records. 

Later that month, Mitchell and another man, Johnny Orsinger, traveled from Round Rock, Arizona to Gallup, New Mexico to look for a vehicle to use in the robbery. The two hitchhiked back to the reservation. 

Slim and her granddaughter had traveled in her Sierra GMC truck from Fort Defiance, Arizona to Tohatchi, New Mexico to see a traditional medicine person for leg ailments. They next went to Twin Lakes, New Mexico to see another person.

At some point on the trip, Mitchell and Orsinger got into Slim’s truck. Slim stopped near Sawmill, Arizona to let the men out, but they stabbed her 33 times. They made the child sit next to her grandmother’s body, and Mitchell drove to the mountains before ordering the girl out of the truck. 

According to court records, Mitchell cut the child’s throat and, when she did not die, Orsinger used rocks to kill her. 

A few days later, three men robbed the Red Rock Trading Post. Prosecutors argued Mitchell was carrying a 12-gauge shotgun at the time. A store manager was mopping the floor when she was assaulted by one of the men. Another employee was pushed against the counters when she tried to hide. The employees were tied up in the vault room after the men took $5,530 and a purse. 

Issues with the jury? 

Attorneys for Mitchell are appealing the death penalty to the U.S. Court of Appeals for the Ninth Circuit. Among the reasons, they say, is the court in 2009 didn’t let Mitchell’s attorneys interview the original jurors, which prevented them from learning whether Mitchell truly got a jury of his peers.

“Mitchell was ultimately tried before a jury with only one Native American member regarding crimes committed on Native American land with Native American victims,” his attorneys wrote in the motion. 

They argued there were “racial undertones” in the case, and Mitchell should have been allowed to investigate whether racial bias played a role in his conviction and sentence. 

“In light of the constitutional rights at stake and the grave sentence faced by Mitchell, the district court should have exercised its discretion in granting Mitchell a limited opportunity to interview his jurors,” his attorneys argued in the motion. 

In April, the Ninth Circuit allowed the lawyers to proceed with their appeal. They must file their opening brief with the court by Aug. 28.

The death penalty 

According to a report byThe Arizona Republic, at the time of his sentencing, the Navajo Department of Justice asked that Mitchell not receive the death penalty because capital punishment violates tribal custom and culture.

However, under interstate laws, prosecutors did not have to seek the tribe’s permission to seek the death penalty, according to a report by The Associated Press. 

It has been more than 16 years since the federal government executed an inmate.

In a statement on Thursday, U.S. Attorney General William Barr said the Justice Department “upholds the rule of law” and owes it to the victims and their families to complete the sentences.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Barr stated. 

The executions will involve a single drug called pentobarbital, replacing a prior three-drug cocktail. The issue of execution drugs has been controversial in recent years, following executions that went awry in Arizona and elsewhere.

Only Native American on federal death row to be executed despite tribal objections

The United States on Wednesday plans to put to death the only Native American on federal death row, the latest in a string of executions carried out by the Trump administration this summer and one that has touched off a renewed debate over tribal rights.

Lezmond Mitchell, 38, a member of the Navajo Nation, was convicted for his role in the 2001 murders of a woman and her 9-year-old granddaughter in Arizona.

Attempts by his attorneys to appeal his execution, including to the U.S. Supreme Court, have been exhausted, and he is scheduled to die by lethal injection at the federal prison in Terre Haute, Indiana, barring an eleventh-hour intervention from President Donald Trump.

“Mr. Mitchell’s life is in President Trump’s hands, and we hope the President will demonstrate his respect for tribal sovereignty and grant Mr. Mitchell the mercy of executive clemency,” Mitchell’s attorneys, Jonathan Aminoff and Celeste Bacchi, said in a statement Wednesday.

The attorneys argue that the Justice Department “exploited a legal loophole” when they sought the federal death penalty against Mitchell, who was 20 when he and a 16-year-old accomplice carjacked Alyce Slim, 63, and stabbed her multiple times, then killed her granddaughter, Tiffany Lee, according to prosecutors. The accomplice, also a Navajo citizen, was ineligible for the death penalty because of his age and was sentenced to life in prison.

The Navajo Nation opposes capital punishment. Since its sovereignty is recognized under the U.S. Constitution, its leaders can decide whether to apply the death penalty to crimes under the Federal Death Penalty Act.

But one of the charges that Mitchell was convicted of — carjacking resulting in death — does not require tribal consent under the law because the federal government considers it criminal no matter where it is committed.

Aminoff and Bacchi said Mitchell’s death sentence “represents an unprecedented infringement on the sovereignty of the Navajo Nation, which has steadfastly opposed his execution.” They also questioned whether racial bias may have played a part in Mitchell’s case since he was tried before a jury that had only one Navajo on it.

Navajo leaders in recent weeks have spoken out against the execution, saying it remains the only case in the history of America’s modern death penalty in which the U.S. government is applying it to a crime committed on tribal land and despite opposition from the tribal government.

Last month, Navajo Nation President Jonathan Nez wrote to Trump asking for him to reduce Mitchell’s sentence to life in prison.

“This request honors our religious and traditional beliefs, the Navajo Nation’s long-standing position on the death penalty for Native Americans, and our respect for the decision of the victim’s family,” Nez wrote.

Carl Roessel Slater, a Navajo council delegate, said he worries that “if this execution goes forward, the precedent will be set that, no matter the sovereign position of any Indian tribe, the federal government can kill American Indians and Diné, specifically.”

In their bid for clemency, Navajo leaders and Mitchell’s attorneys provided past statements from the victims’ family opposing the death penalty and from federal appeals court judges who agreed that ignoring the tribe’s wishes indicates “a lack of respect for its status as a sovereign entity.”

The Justice Department did not provide a new comment Wednesday about the decision to move forward with Mitchell’s execution. The agency has previously noted that a federal court in 2007 ruled on the legality of the death penalty sentence in Mitchell’s case and that the federal government during past administrations also sought the death penalty in cases of carjacking resulting in death.

In addition, at least one member of the victims’ family, the father of Tiffany Lee, told The Associated Press recently that he consents to the use of the death penalty as “an eye for an eye.”

“I speak for myself and for my daughter,” Daniel Lee said.

Mitchell is set to become the fourth federal inmate to be executed this year after the federal government resumed the death penalty in July after a 17-year hiatus.

Over the past two decades, several states have moved to abolish the death penalty as the movement on the federal level ground to a halt — a combination of the lack of priority under previous administrations, concerns over botched executions and the delays caused by extended appeals.

But Trump, who has pushed a law-and-order agenda, is pressing ahead with such cases, even as critics have argued that carrying out executions during the coronavirus pandemic is unnecessary and puts the health of those at the federal prison in Indiana at risk.

In announcing the slate of executions last month, Attorney General William Barr said the Justice Department is going after “the worst criminals … convicted by a jury of his peers after a full and fair proceeding.”

“We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” he added.


Only Native American on federal death row executed despite tribal objections

The United States on Wednesday put to death the only Native American on federal death row, the latest in a string of executions carried out by the Trump administration this summer and one that has touched off a renewed debate over tribal rights.

Lezmond Mitchell, 38, a member of the Navajo Nation, was convicted for his role in the 2001 murders of a woman and her 9-year-old granddaughter in Arizona.

Attempts by his attorneys to appeal his execution, including to the U.S. Supreme Court, were exhausted, and he died by lethal injection at the federal prison in Terre Haute, Indiana, without an 11th-hour intervention from President Donald Trump.

“Mr. Mitchell’s execution represents a gross insult to the sovereignty of the Navajo Nation, whose leaders had personally called on the President to commute his sentence to life without possibility of release,” Mitchell’s attorneys, Jonathan Aminoff and Celeste Bacchi, said in a statement Wednesday. “The very fact that he faced execution despite the tribe’s opposition to a death sentence for him reflected the government’s disdain for tribal sovereignty.”

The attorneys argued that the Justice Department “exploited a legal loophole” when they sought the federal death penalty against Mitchell, who was 20 when he and a 16-year-old accomplice carjacked Alyce Slim, 63, and stabbed her multiple times, then killed her granddaughter, Tiffany Lee, according to prosecutors. The accomplice, also a Navajo citizen, was ineligible for the death penalty because of his age and was sentenced to life in prison.

The Navajo Nation opposes capital punishment. Since its sovereignty is recognized under the U.S. Constitution, its leaders can decide whether to apply the death penalty to crimes under the Federal Death Penalty Act.

But one of the charges that Mitchell was convicted of — carjacking resulting in death — does not require tribal consent under the law because the federal government considers it criminal no matter where it is committed.

Aminoff and Bacchi said Mitchell’s death sentence “represents an unprecedented infringement on the sovereignty of the Navajo Nation, which has steadfastly opposed his execution.” They also questioned whether racial bias may have played a part in Mitchell’s case since he was tried before a jury that had only one Navajo on it.

Navajo leaders in recent weeks have spoken out against the execution, saying it remains the only case in the history of America’s modern death penalty in which the U.S. government is applying it to a crime committed on tribal land and despite opposition from the tribal government.

Last month, Navajo Nation President Jonathan Nez wrote to Trump asking for him to reduce Mitchell’s sentence to life in prison.

“This request honors our religious and traditional beliefs, the Navajo Nation’s long-standing position on the death penalty for Native Americans, and our respect for the decision of the victim’s family,” Nez wrote.

Carl Roessel Slater, a Navajo council delegate, said he worries that “if this execution goes forward, the precedent will be set that, no matter the sovereign position of any Indian tribe, the federal government can kill American Indians and Diné, specifically.”

In their bid for clemency, Navajo leaders and Mitchell’s attorneys provided past statements from the victims’ family opposing the death penalty and from federal appeals court judges who agreed that ignoring the tribe’s wishes indicates “a lack of respect for its status as a sovereign entity.”

The Justice Department did not provide a new comment Wednesday about the decision to move forward with Mitchell’s execution. The agency has previously noted that a federal court in 2007 ruled on the legality of the death penalty sentence in Mitchell’s case and that the federal government during past administrations also sought the death penalty in cases of carjacking resulting in death.

In addition, at least one member of the victims’ family, the father of Tiffany Lee, told The Associated Press recently that he consents to the use of the death penalty as “an eye for an eye.”

“I speak for myself and for my daughter,” Daniel Lee said.

Mitchell is set to become the fourth federal inmate to be executed this year after the federal government resumed the death penalty in July after a 17-year hiatus.

Over the past two decades, several states have moved to abolish the death penalty as the movement on the federal level ground to a halt — a combination of the lack of priority under previous administrations, concerns over botched executions and the delays caused by extended appeals.

But Trump, who has pushed a law-and-order agenda, is pressing ahead with such cases, even as critics have argued that carrying out executions during the coronavirus pandemic is unnecessary and puts the health of those at the federal prison in Indiana at risk.

In announcing the slate of executions last month, Attorney General William Barr said the Justice Department is going after “the worst criminals … convicted by a jury of his peers after a full and fair proceeding.”

“We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” he added.

Supreme Court Authorizes Execution of Only Native American on Federal Death Row

WASHINGTON (CN) — Clearing the way for the first federal execution of a Native American in modern history, the Supreme Court rejected claims of jury bias late Tuesday night from Navajo man Lezmond Mitchell. 

The Navajo Nation has strongly objected to the execution — Mitchell’s lethal injection is set for Wednesday at 6 p.m. — and joined the victims’ family in challenging it. 

Now 38, Mitchell was found guilty of the 2001 killing of a woman and her granddaughter during a carjacking on tribal land.

Mitchell’s attorneys Jonathan Aminoff and Celeste Bacchi noted Wednesday that their last hope is executive clemency from President Donald Trump.

Though they claimed that Mitchell’s sentence was handed down by a racially biased jury, the Justice Department told the high court the claim was “nothing more than a fishing expedition,” and that his case did not meet the “extraordinary circumstance” to justify reopening the record. 

Mitchell had argued that the federal government purposely moved his trial to a part of the District of Arizona with a small Native American population, then leaned heavily on anti-Native American stereotypes in its arguments to the jury — 11 white, only one Native American. 

These claims may never be resolved, Aminoff and Bacchi said in a statement Tuesday night, “yet we do know that Mr. Mitchell’s death sentence represents an unprecedented infringement on the sovereignty of the Navajo Nation, which has steadfastly opposed his execution.”

With respect to Mitchell’s unsuccessful stay application, Justice Sonia Sotomayor wrote in a statement that “considerable uncertainty” remains on the scope of the Federal Death Penalty Act of 1994.

“In the most detailed analysis provided by a lower court to date, three judges offered three different views on how to define the ‘manner’ of implementing a death sentence and where to locate the relevant ‘law of the State,’” Sotomayor wrote.

The federal government resumed federal executions last month after a 17-year hiatus, following a 5-4 Supreme Court reversal in the first of the cases Barr v. Lee.

Sotomayor said she supported the decision to deny Mitchell’s appeal but also distinguished his case from the issues raised in the rapid-fire line of appeals last month that divided the justices.  

“With additional federal executions scheduled in the coming months, the importance of clarifying the FDPA’s meaning remains,” the Obama appointee added. “I believe that this Court should address this issue in an appropriate case.”

Like this summer’s three previous federal executions, Mitchell’s tonight will also be carried out in Terre Haute, Indiana.

The Justice Department scheduled the lineup of executions in June, drawing criticism that carrying out the sentences was a campaign strategy by Trump to reinforce his mantle as the “law and order” candidate. 

The Navajo government has pleaded with Trump to commute Mitchell’s death sentence, arguing the execution is an affront to their sovereignty. 

Navajo Nation Council Speaker Seth Damon urged Trump in a letter to respect the wishes of the victims’ family, who are also Navajo citizens, and grant Mitchell life in prison without parole. 

“Vengeance or retribution are western ways that conflict with Navajo principles of harmony, balance and restoring the whole,” Damon wrote on Aug. 16. 

Mitchell’s attorneys argued in their federal complaint filed Tuesday in Washington that the inmate suffered from serious mental illness and drug addiction when he murdered his victims. 

They also claimed his co-defendant, Johnny Orsinger, was the primary aggressor and had committed an unrelated double homicide months before the killing of Alyce Slim, 63, and her 9-year-old granddaughter. Orsinger was a juvenile and received a life sentence, while Mitchell, who turned 20 just weeks before the crimes, was sentenced to death. 

“Had the jury heard this crucial mitigating evidence, it is more than likely that at least one of them would have determined that Lezmond’s life was worth saving,” the petition states. 

The Bureau of Prisons also found that Mitchell had a low risk of recidivism, his attorneys noted, stressing the inmate’s remorse over the crimes he committed. 

“Despite the Navajo Nation’s opposition to the death penalty generally, and to its imposition for Mitchell specifically, DOJ exploited a legal loophole and capitally prosecuted Mitchell for the general applicability crime of carjacking resulting in death,” they wrote in Tuesday’s complaint. 

Also on Tuesday, the D.C. Circuit refused to block what will be this week’s second federal execution. 

Keith Nelson had sought a stay of execution based on autopsy findings that Wesley Ira Purkey, executed on July 16, suffered extreme pain before succumbing to lethal injection.

Attorneys for Nelson also accused the government of having used expired vials of pentobarbital in July, presenting photos in support of their claims that the pentobarbital the government plans to administer to their client may be subpotent, thus increasing the risk of prolonged death and extreme pain.

Nelson is scheduled to go to the death chamber on Friday. He pleaded guilty in 2001 to kidnapping and murdering a 10-year-old girl who was rollerblading outside her home.

Like the three inmates executed last month, Nelson has argued the new federal execution protocol rolled out by Attorney General William Barr this summer violates the Eighth Amendment. 

But the D.C. Circuit found that the Supreme Court’s ruling in Lee last month left no room to block Mitchell’s execution. 

“Nelson’s new evidence provides no ground on which we might grant equitable relief,” Tuesday’s ruling from the three-judge panel states. “The district court made no factual findings on that evidence, and we are in no position to do so in the first instance.”