3 Death Penalty Cases Knocking On The High Court's Door

By Emma Cueto | August 23, 2020, 8:02 PM EDT

The only Native American on death row, a man whose trial judge overruled a jury's decision to not sentence him to death and an inmate challenging a drug linked to several botched executions have all this month asked the U.S. Supreme Court to take up their cases.

Though it is always unlikely that the high court will agree to hear any particular case, these petitions offer the high court the opportunity to weigh in on three distinct elements of the capital punishment process: conviction, sentencing, and the execution itself.

Lezmond Charles Mitchell v. USA

Lezmond Mitchell, thought to be the only Native American put on death row in modern history, on Aug. 13 asked for the Supreme Court to hear his case. He alleges potential racial bias on the jury tainted his double homicide trial in 2003 and that lower courts improperly shut down attempts to reopen his appeal after a 2017 Supreme Court decision on jury racial bias procedures.

Mitchell, a citizen of the Navajo Nation, was arrested in 2001 for a deadly carjacking in which a Navajo grandmother and her 9-year-old granddaughter were killed and dismembered. According to the government, Mitchell confessed to the crime and led investigators to the area where the victims' heads and hands were buried.

As a tribal member, Mitchell was tried for the crime in federal court. His attorneys have highlighted the fact that the courthouse in Phoenix was 300 miles from the Navajo capital, and that the jury that convicted Mitchell was made up of 11 white members and only one Navajo. During closing arguments, the prosecutor reportedly referenced the Old West, allegedly an attempt to invoke the idea of "cowboys and Indians."

The jury voted that he should be sentenced to death.

Mitchell's attorneys at trial sought to interview the jurors after the conviction to determine if racial bias played a role in the decision but were denied the request by the trial judge. After a 2017 Supreme Court case, Peña-Rodriguez v. Colorado , ruled that death row inmates do have a right to interview jurors for racial bias, Mitchell sought to reopen the case.

The Navajo Nation, which opposes the death penalty, has asked that Mitchell's sentence be commuted to life in prison.

Under the Federal Death Penalty Act, the federal government is unable to seek the death penalty for a Native person for a murder of Native victims without the consent of the tribe, but because Mitchell was convicted of carjacking resulting in death, rather than murder, prosecutors were allowed to pursue the death penalty.

Mitchell's scheduled execution is also currently looming over the case, with the date set for Aug. 26. In addition to his petition for certiorari, Mitchell has also asked the court to stay the execution. On Thursday, however, the federal government urged the Supreme Court to not take up Mitchell's petition, arguing the request amounts to an unsupported "fishing expedition."

Counsel for both parties did not comment.

Calvin McMillan v. Alabama

Calvin McMillan, who was convicted in 2009 of capital murder, asked the court this month to declare that a since-abandoned policy allowing judges to overrule a jury decision is unconstitutional.

McMillan, who is Black, was convicted of killing a white man during a robbery while still a teenager. During the sentencing phase of his trial, he presented significant evidence about his abusive childhood, which reportedly included both physical and sexual abuse.

McMillan lived in 25 foster homes by the time he turned 18, and as a child when he was hungry used to draw pictures of sandwiches and eat the paper, according to court documents.

The jury in his case voted 8-4 to sentence him to life in prison, rather than death. However, the judge overruled that decision and issued a capital sentence, a practice allowed at the time under the doctrine of judicial override.

The Supreme Court upheld judicial override in a 2013 case, at which point four states allowed the practice. However, since then, all four have abandoned it, with Alabama being the most recent to drop the practice in 2017.

If the court takes up the case, it would have implications not only for McMillan, but also 31 other people on death row in Alabama who received death sentences under similar circumstances.

"[We are] asking the court to invalidate a practice that was inherently flawed, highly susceptible to electoral pressure, plagued by racial bias and disdainful of jurors who vote for life," said Michael Admirand, an attorney for the Southern Center for Human Rights and an attorney for McMillan.

Warren K. Henness v. Mike DeWine

Ohio prisoner Warren K. Henness this month asked the high court to rule that the state's planned drug protocol for his execution is unconstitutional, saying the drug designed to prevent him from experiencing pain has been shown to be ineffective.

Henness was convicted of killing a man who had been helping him look for a drug treatment for his wife in 1992. He has maintained his innocence, but his current appeal does not challenge either his conviction or his death sentence, but rather the method the state plans to use to execute him.

The first drug in the planned three-drug protocol for his execution, midazolam hydrochloride, is a sedative that is meant to prevent Henness from feeling the pain caused by the second two drugs, which will stop his lungs and heart. Midazolam, however, has been associated with several botched executions, and a growing body of evidence has called its effectiveness into question, Henness contends.

The Supreme Court previously upheld 5-4 the use of midazolam in 2015, at which point the drug had already been linked to at least three botched executions. In the five years since, more evidence has surfaced about its ineffectiveness, which a magistrate judge in Henness' case acknowledged in 2019. The judge wrote that since a similar case two years earlier, the "quality of the evidence ... has increased dramatically" and concluding that midazolam has no painkilling properties.

Henness contends that the proposed dosage Ohio plans to use would not block the sensation of pain and would instead result in several minutes of slow suffocation as his lungs fill with fluid, an effect he likened to a botched hanging, which the court has previously ruled violates the Eighth Amendment's protections against cruel and unusual punishment.

He also argued that the Sixth Circuit overstated Henness' burden when suggesting a viable, supposedly superior form of execution, arguing that the state hadn't made a good faith effort to source the drug he suggested, which is used in medically assisted deaths, and that it shouldn't be allowed to shoot it down simply because it hadn't been used in executions.

The state of Ohio has argued that the Sixth Circuit correctly ruled against Henness, saying that he had not met his burden of proof that the drug combination would result in severe pain. It also argued that the alternate drug he suggested was not viable, partly because it would need to be administered via feeding tube, an impractical option if an inmate resists, and partly because it can take up to 53 hours to cause death, though the median time is 25 minutes.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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