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WASHINGTON — One day before his scheduled execution by lethal injection, Navajo citizen Lezmond Mitchell has filed a lawsuit in a D.C. court to stop the federal government from carrying out his death-penalty order.  

On Tuesday, lawyers for Mitchell, the only American Indian awaiting execution, filed a lawsuit in the U.S. District Court for the District of Columbia against Attorney General William Barr and several other government officials. Under the Federal Death Penalty Act, Barr is responsible for carrying out sentences of death against federal prisoners.

In the lawsuit, Mitchell, who is incarcerated at the United States Penitentiary in Terre Haute, Ind., asks for an injunction and declaratory relief for violations of his rights under the U.S. Constitution. Mitchell alleges his Fifth Amendment Rigths to due process and equal protection, as well as his Eight Amendment right against arbitrary imposition of the death penalty were violated, according to the legal filing.  

At the heart of the suit, Mitchell claims the federal government violated his rights to make use of a process created for individuals under a federal death sentence seeking executive clemency.  Over the past year, Mitchell and his attorneys have attempted to navigate the process amid a number of appeals of his conviction.

Mitchell and a co-defendant were convicted of crimes that stunned Indian Country. The pair stabbed a 63-year-old Navajo woman nearly three dozen times, killing her. Then they slit the throat and dropped rocks on the head of the victim’s 9-year-old Navajo granddaughter, killing her, as well. The crimes took place on the Navajo Nation reservation.   

Mitchell then stole the grandmother’s car and robbed a trading post in Red Valley, Ariz. 

Mitchell was convicted of robbery, firearms violations, murder, kidnapping and carjacking resulting in death.  He was sentenced to death.  His co-defendant, Johnny Orsinger was not eligible for the death penalty because of his age and was sentenced to life in prison.  

The primary thrust of Mitchell’s clemency petition is that his death sentence is an “affront” to the sovereignty of the Navajo Nation, according to the legal filing. Under federal law, Congress gave Native American tribes an option to determine whether they wanted the death penalty to apply in cases of intra-Indian crimes occurring on tribal land. The vast majority of the 574 federally recognized tribes have opted out of the death penalty, including the Navajo Nation.  

Mitchell’s request for clemency has been joined by Navajo Nation President Jonathan Nez and Vice President Myron Lizer, who is scheduled to speak Tuesday as part of the Republican National Convention.  

In a letter to President Donald Trump, Nez and Lizer called Mitchell’s prosecution an “affront” to tribal sovereignty and asked the President to grant clemency so the two nations could “move forward” and “continue to work on the importance of protecting [the Navajo] people,” the filing said.  

Later on Tuesday, lawyers for Barr and other defendants filed a response, saying Mitchell's motion for injunction should be denied. The court filing includes a legal declaration by a senior OPA attorney advisor, stating that the investigation into Mitchell's clemency had been completed and its recommendation had been made to the President.  

In the filing, government lawyers claim Mitchell's motion amounts to a request "that the Court issue an orderly improperly intruding into the President's exclusively executive pardon power, by compelling the President to announce a decision on his clemency petition and by second-guessing how the Department of Justice formulates its recommendation to him about clemency.  If the President requires additional time to consider Mitchell's clemency application, he can delay the execution for that reason." 

NOTE:  This story has been updated after defense lawyers filed their legal response in opposition to Mitchell's lawsuit.

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