theintercept--2020-08-25--Minnesota Paramedic Speaks Out Against Police Use of Ketamine Injections

with the Emergency Medical Services in Woodbury , a suburb of St. Paul , Minnesota , has filed a whistleblower lawsuit claiming that police pressured him to administer ketamine , a fast-acting sedative , during an arrest .
He claims that the incident is part of a larger trend among the region ’ s law enforcement .
The paramedic , 32-year-old Joseph Baker , said that he hopes to take a stand against police using ketamine “ to gain compliance.
” “ It ’ s not an appropriate use of our jobs as paramedics , ” he told The Intercept @ @ @ @ @ @ @ lawsuit was filed on August 17 , in the District Court of Minnesota .
In Woodbury , the police , EMS , and firefighters all collaborate as part of the city ’ s Public Safety Department .
The lawsuit also addresses several alleged instances of falsified EMS training credentials that Baker claims to have found among former colleagues in the department .
Baker said he felt pushed out of his job after refusing to administer ketamine in an incident in September 2019 .
Prior to that , he had to give ketamine injections @ @ @ @ @ @ @ Woodbury EMS and recalled a trigger-happy mentality in the department around the drug .
“ The dispatchers would say : Get your ketamine ready , bring your ketamine , ” he said .
His lawsuit claims that the “ symbiotic relationship between EMS and police officers has created room for police officers to coerce paramedics like Plaintiff Baker to administer Ketamine on unwilling subjects.
” Baker ’ s is the first whistleblower complaint in the country to directly address ketamine-induced sedation in policing .
There is not yet strong national data on ketamine @ @ @ @ @ @ @ is a relatively recent phenomenon .
In Minnesota ’ s Hennepin County — which includes Minneapolis and is adjacent to Washington County , which includes Woodbury — a civilian oversight board conducted a sweeping report on “ Pre-Hospital Sedation ” in 2018 and found that ketamine use by the Minneapolis Police Department had sharply increased in just a few years .
Before 2015 , there were an average of about four mentions of ketamine per year in police reports of detainees , but in 2017 , there were 62 .
( Minneapolis ’ @ @ @ @ @ @ @ The Intercept that since the report came out , police leadership had been informally recommending all officers in the force not to request sedatives from paramedics , though he was not sure how strict officers ’ compliance has been since then . )
The most high-profile ketamine-related incident to date is the death of Elijah McClain , a 23-year-old Black massage therapist , in Colorado last year .
Officers placed him in a chokehold during his arrest and then injected him with a very large dose of ketamine , which rapidly led him @ @ @ @ @ @ @ few days later in a hospital .
Kenneth Udoibok , a Minneapolis-based lawyer who specializes in police brutality and is representing Baker , said his case could set a precedent in conceptualizing ketamine-induced sedation as a kind of excessive force .
Usually , Udoibok said , “ the actual victims of ketamine injections can not make a strong case.
” Police officers outsource the injections to paramedics , and paramedics can plausibly claim that arrestees were being “ belligerent ” or that they presented “ safety concerns , ” he explained .
“ @ @ @ @ @ @ @ someone on the other side has come forward.
” “ There are so many instances across the country now of police officers pressuring paramedics to administer ketamine , ” said Udoibok .
“ If a ruling like this comes from Minnesota , establishing that it is unlawful for paramedics to be coerced to use sedatives , all cops will think twice about this.
” his post at Woodbury EMS in December , after about 18 months on the job .
He now lives in the suburb of Inver Grove Heights with his wife @ @ @ @ @ @ @ for a private health services company in Minneapolis .
He grew up in Maryland and became a volunteer emergency medicine technician when he was 16 , he said , speaking from his home via Zoom .
Baker served in the military as a police officer from 2007 to 2012 , including a deployment in Baghdad from 2009 to 2010 .
After the military , he went back to school for emergency medical care .
Coincidentally , one of the assignments he completed for his bachelor ’ s degree from Eastern Kentucky University last @ @ @ @ @ @ @ “ Continuous Communication and De-escalation during Behavioral Emergencies.
” Thus , Baker has been somewhat unusually focused on deescalation as a way to deal with detained people and patients , which he said put him in conflict with the workplace culture of the Woodbury EMS and the Woodbury police .
“ As a military police officer , they referred to deescalation as ‘ verbal judo , ’ ” he said .
“ It sounds cliché , but my ability to communicate is my most powerful weapon .
I can convince people to communicate @ @ @ @ @ @ @ He said he tries to humanize himself to excitable patients by talking about his family or bringing up light topics like sports .
“ I was also aware that my uniform was very similar to that of a police officer , which is inherently stressful , especially to patients with mental illness , ” he added .
When Baker responded to a call on September 22 , 2019 , according to the lawsuit , Sgt .
Tom Ehrenberg and other police officers pressured Baker to administer ketamine .
Baker said in an interview @ @ @ @ @ @ @ a mental illness but that he also did not resist any directives to a degree that seemed to require sedation .
“ He was on his feet and complied with all the officer ’ s orders … and even had a conversation with me about the Vikings , ” Baker recalled .
He refused to sedate him , and the man was eventually released .
“ You shouldn ’ t just jump to sedation because there are plenty of situations where people will appear combative or disordered , but they are actually hypoxic @ @ @ @ @ @ @ , ” said Baker .
“ Ketamine is especially concerning because when you administer it , it takes away the patient ’ s ability to cooperate with you .
And we should be giving patients every opportunity to cooperate.
” That day , said Baker , Ehrenberg waited for him at the station and berated him for not cooperating with the request .
Baker soon felt pressure to leave his post .
He was placed on a “ progressive improvement plan ” in November , which he was told was in response to @ @ @ @ @ @ @ included a list of check-ins and behavioral interventions that were to continue for an indefinite period of time .
He decided to quit instead .
His lawsuit names the city of Woodbury , as well as the city ’ s fire chief and two EMS commanders .
Attorneys for the city told The Intercept that “ with regard to the administration of any medications , such as ketamine , a medical professional determines whether the intervention is medically warranted under the circumstances .
No employee of the City of Woodbury improperly administered any @ @ @ @ @ @ @ disciplined or subject to retaliation and we categorically deny the allegations in the complaint.
” drug discovered in 1962 , is a fast-acting general anesthetic that is typically used in humans as a sedative before surgeries .
It has been marketed in the U.S. as an anesthetic for both humans and animals since the 1970s , according to the Drug Enforcement Administration , and is also used recreationally for its dissociative effects .
Its side effects include severe confusion , hallucinations , loss of bladder control , and shallow breathing .
In a @ @ @ @ @ @ @ Cities doctors on “ ketamine as primary therapy for prehospital profound agitation , ” 57 percent of the patients had to get intubated after their ketamine injection .
A 2016 study comparing ketamine to haloperidol , an antipsychotic medication also used to treat delirium , found that complications occurred in 49 percent of patients receiving ketamine , compared to only 5 percent for the haloperidol group .
It concluded that while ketamine is a faster-acting sedative , it is “ associated with more complications and a higher intubation rate.
” “ Of course @ @ @ @ @ @ @ , but ketamine is fast-acting and powerful , ” said Udoibok .
“ And it has been heavily marketed both to paramedics and law enforcement.
” The typical dose of ketamine is based on a person ’ s weight , explained Baker .
“ The rule of thumb is 5 mg per kilogram of bodyweight , so you typically start at 250 mg and give more doses if needed.
” It is usually delivered as an intramuscular shot to the butt or forearm .
But it ’ s possible to go overboard , @ @ @ @ @ @ @ instance , who was roughly 140 pounds , immediately received a 500 mg shot and incurred a heart attack shortly thereafter .
“ I ’ m not anti-ketamine , ” said Baker .
“ There are a few situations where it is appropriate , like where a patient is actively trying to get out of restraints .
… But even still , many other sedatives that are available , like Ativan , don ’ t run such a high risk of people going unconscious or dissociating.
” Beyond the ketamine incident , part @ @ @ @ @ @ @ with a number of falsified credentials he found among his colleagues , which he claims threaten public safety .
After Baker signed up to give refresher emergency medicine courses last year , he alleges in his lawsuit , he learned that other emergency medicine certifications obtained by several of his colleagues had misleading attendance records behind them .
Meaning that people got their credentials — which allowed them to receive higher salaries —without actually attending all the required classes , which violates a Minnesota statute .
He escalated the complaint to his superiors @ @ @ @ @ @ @ the rug ” for months .
( The city of Woodbury ’ s attorney said that a review had been conducted and concluded “ no training records were falsified and Mr. Baker ’ s complaints were properly addressed.
” ) An email provided to The Intercept between Baker ’ s colleagues , dated November 2019 , shows that Baker was placed on a punitive progressive improvement plan in response to his “ being a ‘ whistle blower ’ for the EMS education matter.
’ ” Udoibok connects the two parts of the lawsuit @ @ @ @ @ @ @ of cutting corners ” at the EMS that ranges from improper certifications to overzealous calls for sedation .
“ The City of Woodbury , ” per the lawsuit , “ allowed the custom of stifling any form of reporting wrongdoings by employees at the EMS , no matter the context.
” So far , Baker has been pleasantly surprised by the reception from his previous colleagues at Woodbury EMS .
“ I thought I was going to get pushback , but it ’ s the reverse , ” he said .
“ So @ @ @ @ @ @ @ thank you for speaking out.
” Update : Aug. 25 , 2020 , 4:48 p.m .
ET This article has been updated to clarify Baker ’ s perspective on the likelihood of a ketamine injection resulting in an overdose .

A former paramedic with the Emergency Medical Services in Woodbury, a suburb of St. Paul, Minnesota, has filed a whistleblower lawsuit claiming that police pressured him to administer ketamine, a fast-acting sedative, during an arrest. He claims that the incident is part of a larger trend among the region’s law enforcement. The paramedic, 32-year-old Joseph Baker, said that he hopes to take a stand against police using ketamine “to gain compliance.”
“It’s not an appropriate use of our jobs as paramedics,” he told The Intercept, in his first interview since the lawsuit was filed on August 17, in the District Court of Minnesota. In Woodbury, the police, EMS, and firefighters all collaborate as part of the city’s Public Safety Department.
The lawsuit also addresses several alleged instances of falsified EMS training credentials that Baker claims to have found among former colleagues in the department.
Baker said he felt pushed out of his job after refusing to administer ketamine in an incident in September 2019. Prior to that, he had to give ketamine injections on three other occasions as part of Woodbury EMS and recalled a trigger-happy mentality in the department around the drug.
“The dispatchers would say: Get your ketamine ready, bring your ketamine,” he said. His lawsuit claims that the “symbiotic relationship between EMS and police officers has created room for police officers to coerce paramedics like Plaintiff Baker to administer Ketamine on unwilling subjects.”
“If a ruling like this comes from Minnesota, establishing that it is unlawful for paramedics to be coerced to use sedatives, all cops will think twice about this.”
Baker’s is the first whistleblower complaint in the country to directly address ketamine-induced sedation in policing. There is not yet strong national data on ketamine use in police arrests, but it is a relatively recent phenomenon. In Minnesota’s Hennepin County — which includes Minneapolis and is adjacent to Washington County, which includes Woodbury — a civilian oversight board conducted a sweeping report on “Pre-Hospital Sedation” in 2018 and found that ketamine use by the Minneapolis Police Department had sharply increased in just a few years. Before 2015, there were an average of about four mentions of ketamine per year in police reports of detainees, but in 2017, there were 62. (Minneapolis’s Deputy Police Chief Art Knight told The Intercept that since the report came out, police leadership had been informally recommending all officers in the force not to request sedatives from paramedics, though he was not sure how strict officers’ compliance has been since then.) The most high-profile ketamine-related incident to date is the death of Elijah McClain, a 23-year-old Black massage therapist, in Colorado last year. Officers placed him in a chokehold during his arrest and then injected him with a very large dose of ketamine, which rapidly led him into cardiac arrest. He died a few days later in a hospital.
Kenneth Udoibok, a Minneapolis-based lawyer who specializes in police brutality and is representing Baker, said his case could set a precedent in conceptualizing ketamine-induced sedation as a kind of excessive force. Usually, Udoibok said, “the actual victims of ketamine injections cannot make a strong case.” Police officers outsource the injections to paramedics, and paramedics can plausibly claim that arrestees were being “belligerent” or that they presented “safety concerns,” he explained. “What’s different now is that someone on the other side has come forward.”
“There are so many instances across the country now of police officers pressuring paramedics to administer ketamine,” said Udoibok. “If a ruling like this comes from Minnesota, establishing that it is unlawful for paramedics to be coerced to use sedatives, all cops will think twice about this.”
Photo: Courtesy of Joseph Baker
Baker resigned from his post at Woodbury EMS in December, after about 18 months on the job. He now lives in the suburb of Inver Grove Heights with his wife and daughter and works as a paramedic for a private health services company in Minneapolis. He grew up in Maryland and became a volunteer emergency medicine technician when he was 16, he said, speaking from his home via Zoom. Baker served in the military as a police officer from 2007 to 2012, including a deployment in Baghdad from 2009 to 2010. After the military, he went back to school for emergency medical care.
Coincidentally, one of the assignments he completed for his bachelor’s degree from Eastern Kentucky University last year was writing up a protocol for “Continuous Communication and De-escalation during Behavioral Emergencies.” Thus, Baker has been somewhat unusually focused on deescalation as a way to deal with detained people and patients, which he said put him in conflict with the workplace culture of the Woodbury EMS and the Woodbury police.
“As a military police officer, they referred to deescalation as ‘verbal judo,’” he said. “It sounds cliché, but my ability to communicate is my most powerful weapon. I can convince people to communicate about 90 percent of the time.” He said he tries to humanize himself to excitable patients by talking about his family or bringing up light topics like sports. “I was also aware that my uniform was very similar to that of a police officer, which is inherently stressful, especially to patients with mental illness,” he added.
When Baker responded to a call on September 22, 2019, according to the lawsuit,Sgt. Tom Ehrenberg and other police officers pressured Baker to administer ketamine. Baker said in an interview that the man being detained clearly had a mental illness but that he also did not resist any directives to a degree that seemed to require sedation. “He was on his feet and complied with all the officer’s orders … and even had a conversation with me about the Vikings,” Baker recalled. He refused to sedate him, and the man was eventually released.
“I was also aware that my uniform was very similar to that of a police officer, which is inherently stressful, especially to patients with mental illness.”
“You shouldn’t just jump to sedation because there are plenty of situations where people will appear combative or disordered, but they are actually hypoxic, or their blood sugar is low,” said Baker. “Ketamine is especially concerning because when you administer it, it takes away the patient’s ability to cooperate with you. And we should be giving patients every opportunity to cooperate.”
That day, said Baker, Ehrenberg waited for him at the station and berated him for not cooperating with the request.
Baker soon felt pressure to leave his post. He was placed on a “progressive improvement plan” in November, which he was told was in response to his “insubordination,” and it included a list of check-ins and behavioral interventions that were to continue for an indefinite period of time. He decided to quit instead.
His lawsuit names the city of Woodbury, as well as the city’s fire chief and two EMS commanders. Attorneys for the city told The Intercept that “with regard to the administration of any medications, such as ketamine, a medical professional determines whether the intervention is medically warranted under the circumstances. No employee of the City of Woodbury improperly administered any such medications. Mr. Baker was never disciplined or subject to retaliation and we categorically deny the allegations in the complaint.”
Ketamine, a synthetic drug discovered in 1962, is a fast-acting general anesthetic that is typically used in humans as a sedative before surgeries. It has been marketed in the U.S. as an anesthetic for both humans and animals since the 1970s, according to the Drug Enforcement Administration, and is also used recreationally for its dissociative effects. Its side effects include severe confusion, hallucinations, loss of bladder control, and shallow breathing. In a 2017 medical study conducted by several Twin Cities doctors on “ketamine as primary therapy for prehospital profound agitation,” 57 percent of the patients had to get intubated after their ketamine injection. A 2016 study comparing ketamine to haloperidol, an antipsychotic medication also used to treat delirium, found that complications occurred in 49 percent of patients receiving ketamine, compared to only 5 percent for the haloperidol group. It concluded that while ketamine is a faster-acting sedative, it is “associated with more complications and a higher intubation rate.”
“Of course there are other, less intrusive drugs, but ketamine is fast-acting and powerful,” said Udoibok. “And it has been heavily marketed both to paramedics and law enforcement.”
The typical dose of ketamine is based on a person’s weight, explained Baker. “The rule of thumb is 5 mg per kilogram of bodyweight, so you typically start at 250 mg and give more doses if needed.” It is usually delivered as an intramuscular shot to the butt or forearm. But it’s possible to go overboard, said Baker. Elijah McClain, for instance, who was roughly 140 pounds, immediately received a 500 mg shot and incurred a heart attack shortly thereafter.
“I’m not anti-ketamine,” said Baker. “There are a few situations where it is appropriate, like where a patient is actively trying to get out of restraints. … But even still, many other sedatives that are available, like Ativan, don’t run such a high risk of people going unconscious or dissociating.”
“The City of Woodbury allowed the custom of stifling any form of reporting wrongdoings by employees at the EMS, no matter the context.”
Beyond the ketamine incident, part of Baker’s whistleblower lawsuit deals with a number of falsified credentials he found among his colleagues, which he claims threaten public safety. After Baker signed up to give refresher emergency medicine courses last year, he alleges in his lawsuit, he learned that other emergency medicine certifications obtained by several of his colleagues had misleading attendance records behind them. Meaning that people got their credentials — which allowed them to receive higher salaries —without actually attending all the required classes, which violates a Minnesota statute. He escalated the complaint to his superiors but said it was “swept under the rug” for months. (The city of Woodbury’s attorney said that a review had been conducted and concluded “no training records were falsified and Mr. Baker’s complaints were properly addressed.”) An email provided to The Intercept between Baker’s colleagues, dated November 2019, shows that Baker was placed on a punitive progressive improvement plan in response to his “being a ‘whistle blower’ for the EMS education matter.’”
Udoibok connects the two parts of the lawsuit as part of a general “climate of cutting corners” at the EMS that ranges from improper certifications to overzealous calls for sedation. “The City of Woodbury,” per the lawsuit, “allowed the custom of stifling any form of reporting wrongdoings by employees at the EMS, no matter the context.”
So far, Baker has been pleasantly surprised by the reception from his previous colleagues at Woodbury EMS. “I thought I was going to get pushback, but it’s the reverse,” he said. “So many people have messaged me and said thank you for speaking out.”
Update: Aug. 25, 2020, 4:48 p.m. ET
This article has been updated to clarify Baker’s perspective on the likelihood of a ketamine injection resulting in an overdose.


theintercept--2020-08-25--Over the Objections of the Navajo Nation, Trump Prepares to Execute Lezmond Mitchell

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.
@ @ @ @ @ @ @ he was arrested alongside a teenager named Johnny Oslinger 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 @ @ @ @ @ @ @ , 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 @ @ @ @ @ @ @ ’ 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 @ @ @ @ @ @ @ .
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 @ @ @ @ @ @ @ , and high rates of violence .
Fontes ’ s approach to his students was “ We ’ re gon na 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 , @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ “ 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 @ @ @ @ @ @ @ 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.
” 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ “ 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 ; @ @ @ @ @ @ @ , 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 @ @ @ @ @ @ @ 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 can not 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 @ @ @ @ @ @ @ 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 .
@ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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.
’ ” The allusion to lynching and the Old West hinted at another question that has never been fully addressed in his @ @ @ @ @ @ @ 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 “ @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
@ @ @ @ @ @ @ .
“ 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.
” 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 @ @ @ @ @ @ @ .
“ 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 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. @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
@ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 , @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 ?
” On August 21 , the Navajo Times ran a startling headline about Mitchell ’ s looming execution .
Contrary to @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 , @ @ @ @ @ @ @ .
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 @ @ @ @ @ @ @ to Terre Haute either , Fontes said .
As he understands it , Mitchell never wanted anyone to see him in that place .
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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 ?
”

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.”
Photo: Courtesy of Auska Kee Mitchell
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.
Photo: Felicia Fonesca/AP
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?”


theintercept--2020-08-28--Some Teachers Are Being Required to Come to School — to Teach Virtually

, a 62-year-old high school French teacher in Michigan , is dreading her return to school next week .
Students in her Wayne County school district — Plymouth-Canton Community Schools — were originally going to be given the option to return to in-person classes or do remote learning , but earlier this month her school board voted to start the school year 100 percent virtual .
“ A lot of teachers were really relieved for so many reasons , ” said Rokakis .
But two days after the school board decided the district would go fully remote , Superintendent Monica @ @ @ @ @ @ @ coming into school to teach children virtually .
“ There wasn ’ t anything that had been discussed , we were just told that ’ s how it would happen , ” recalled Rokakis .
“ We were basically blindsided.
” In a letter sent last Friday to educators , Merritt defended her decision by saying , “ We anticipate how hard it will be for many students to continue learning in a remote space when they miss their school community so much .
It is with this lens , focused on what @ @ @ @ @ @ @ has resulted in our expectation that our staff will teach remotely from their classrooms.
” Merritt did not return requests for comment .
Teachers have continued to press administration for reasons the benefits of this arrangement outweigh the public health risks of coming into school during the coronavirus pandemic .
“ The reasons have been ridiculous .
One is so that students will be able to see their classrooms , so that when they come back face-to-face they ’ ll feel more comfortable , ” said Rokakis .
“ Another is they say @ @ @ @ @ @ @ we need accessible to us , and they keep using the scenario of if we have to do a science experiment .
But I don ’ t teach science , and the things I need are very accessible to me here at home .
And now I ’ m expected to teach French in a mask ?
” In light of all this , some teachers in Plymouth-Canton have applied for family and medical leave to avoid going back , and others are retiring early , according to Rokakis .
“ If I @ @ @ @ @ @ @ can ’ t because I carry the health insurance for my family , ” she said .
“ I ’ m feeling very uncomfortable .
To me , there needs to be more grace .
This is not a normal time and people are trying their hardest.
” Across the country , as schools in some states have already reopened and others are planning to do so in the coming weeks , school districts and board members are grappling with and continually revising their back-to-school procedures .
While many schools have opted to @ @ @ @ @ @ @ risks presented by Covid-19 , educators in some of those districts are still being required to teach from their classrooms .
Even with requirements to wear masks , many teachers feel coming into school buildings is an unnecessary risk during the pandemic , for reasons including poor ventilation , slow coronavirus testing , and unreliable levels of personal protective equipment .
, Jeffrey Riley , the Massachusetts Commissioner of Elementary and Secondary Education , released guidance saying it ’ s the state ’ s “ expectation ” that all teachers and critical support @ @ @ @ @ @ @ each day if their district is doing remote learning .
Reasons Riley listed included “ provid [ ing ] more consistency ” for students , more reliable internet access and faster IT support , making it easier to collaborate with colleagues , and making it easier for administrators “ to monitor the level and amount of instruction students receive.
” The president of the Massachusetts Teachers Association , Merrie Najimy , released a blistering statement in response to the state ’ s recommendation , accusing Riley of having a “ fundamental lack of @ @ @ @ @ @ @ jobs without being supervised .
“ It is paternalistic and punitive and has no bearing on the quality of education that the real experts — the educators — provide so masterfully , ” Najimy wrote , urging for districts to reject the state ’ s guidance .
“ Educators across the Commonwealth are focused on fully redesigning remote instruction to make it more effective , while pushing school districts and the state to make the changes needed to gradually return to in-person instruction .
Commissioner Riley should be advocating for the resources that @ @ @ @ @ @ @ goals rather than putting the thumbscrews to teachers to get them to return to school buildings before it is safe to do so.
” Scott McLennan , a spokesperson for the union , told The Intercept that districts and unions are still negotiating reopening plans , so they ’ re still “ waiting to see how it plays out.
” At least a few large school districts in the state , like Springfield and Worcester , have said they will not require teachers to come to school for remote instruction .
Joanna Plotz @ @ @ @ @ @ @ , a city with among the highest rates of Covid-19 infections in the state , is hoping her union succeeds in blocking the recommendation .
“ In an ideal world I ’ d obviously love to be in a classroom , but it just doesn ’ t feel worth it , ” said Plotz .
If teachers at Plotz ’ s school are required to return to school , Plotz would be sharing a classroom with another educator , who has a 3-year-old daughter .
Many teachers would like the option to go @ @ @ @ @ @ @ go in sometimes .
I live in a 500-square-foot-apartment , and Sundays it might be good to go in and prepare things , but I ’ d only want to do it if the other teacher and her daughter wouldn ’ t be there , ” said Plotz .
“ And I do have some coworkers who are going crazy at home .
But the way [ the state ] is doing it just says , ‘ We don ’ t trust teachers.
’ ” Reached for comment , Colleen Quinn , a @ @ @ @ @ @ @ guidance .
“ In remote scenarios , instruction from the classroom is the most effective educational environment , ” she said .
of the country , some teachers are already back at school providing remote instruction to students at home .
Erin Taylor , a middle school teacher in Colorado Springs , Colorado , said she still has not received a real explanation from her district as to why educators have to be teaching remotely from their school buildings .
“ As teachers we always have to have an answer when our students @ @ @ @ @ @ @ have to learn this ?
’ and I have not heard any answer from the district , ” said Taylor .
“ It feels like a lack of trust , a surveillance thing , and I would totally be open and love to hear how they arrived at this decision , even if I disagreed with it .
But we haven ’ t even gotten that.
” Devra Ashby , a spokesperson for the school district told The Intercept that it is their goal “ to provide a standard professional instructional delivery setting @ @ @ @ @ @ @ that teachers “ have the most resources at their fingertips when they are in their classrooms.
” Ashby added that one-third of their students will be coming into the building for hybrid learning and that their standards for education have not changed .
“ We must deliver industry-standard instructions in a professional academic setting , which promotes student academic potential and achievement , ” she said .
Taylor said there has been mixed messaging around masks .
Colorado has a statewide mandate that says individuals must wear masks when inside public places , @ @ @ @ @ @ @ also advised educators to wear masks at all times , but that policy is not being enforced at every school .
“ I ’ ve been back at school for over two weeks now and I just see a lot of people not wearing masks even though that ’ s supposed to be the official policy , ” she said .
“ I ’ ve walked past people where there are meetings going on and a bunch of people sitting around the table not wearing masks.
” Taylor , who spoke to The @ @ @ @ @ @ @ school year , said she ’ s trying to be empathetic but is worried about how unsafe she already feels .
“ We always talk as teachers about how the beginning of the year is the time to reinforce routine and rules and make sure you ’ re being clear , because with kids , if you don ’ t enforce a rule at the beginning , it becomes really hard to get that [ compliance ] later on , ” she said .
“ It just feels like , well , if @ @ @ @ @ @ @ on Day 2 , then I don ’ t have much hope for the year.
” Shawntel Shirkey , a paraeducator in Wichita , Kansas , also has to come into her high school for remote instruction .
Earlier this month , the Wichita school board approved in-person learning for elementary schools and remote learning for middle and high school students .
Shirkey thinks given the conservative political climate in Kansas , her school board “ made the best decision I could hope for.
” At least one teacher at her school has @ @ @ @ @ @ @ but she praised her school for at least giving all staff members cloth masks , ample amounts of sanitizer and disinfectant , and the option to get face shields .
“ The district itself is not being very forthcoming but I ’ m lucky that my principal is being transparent about if someone has tested positive , ” Shirkey said .
Like in Taylor ’ s school , masks mandates don ’ t always mean staff actually wears them .
Shirkey thinks it ’ s been “ pretty split ” among teachers about @ @ @ @ @ @ @ from school .
“ Some educators definitely see the irony of requiring teachers to come into buildings that the district has deemed unsafe for students , ” she said .
“ But others just think the pandemic is ridiculous and as soon as the election is over , coronavirus is going to go away .
”

Kathy Rokakis , a 62-year-old high school French teacher in Michigan, is dreading her return to school next week.
Students in her Wayne County school district — Plymouth-Canton Community Schools — were originally going to be given the option to return to in-person classes or do remote learning, but earlier this month her school board voted to start the school year 100 percent virtual. “A lot of teachers were really relieved for so many reasons,” said Rokakis.
But two days after the school board decided the district would go fully remote, Superintendent Monica Merritt announced that teachers would still be coming into school to teach children virtually. “There wasn’t anything that had been discussed, we were just told that’s how it would happen,” recalled Rokakis. “We were basically blindsided.”
In a letter sent last Friday to educators, Merritt defended her decision by saying, “We anticipate how hard it will be for many students to continue learning in a remote space when they miss their school community so much. It is with this lens, focused on what is best for our students, that has resulted in our expectation that our staff will teach remotely from their classrooms.” Merritt did not return requests for comment.
Teachers have continued to press administration for reasons the benefits of this arrangement outweigh the public health risks of coming into school during the coronavirus pandemic.
“The reasons have been ridiculous. One is so that students will be able to see their classrooms, so that when they come back face-to-face they’ll feel more comfortable,” said Rokakis. “Another is they say so we’ll have anything that we need accessible to us, and they keep using the scenario of if we have to do a science experiment. But I don’t teach science, and the things I need are very accessible to me here at home. And now I’m expected to teach French in a mask?”
In light of all this, some teachers in Plymouth-Canton have applied for family and medical leave to avoid going back, and others are retiring early, according to Rokakis. “If I could, I would, but I can’t because I carry the health insurance for my family,” she said. “I’m feeling very uncomfortable. To me, there needs to be more grace. This is not a normal time and people are trying their hardest.”
Across the country, as schools in some states have already reopened and others are planning to do so in the coming weeks, school districts and board members are grappling with and continually revising their back-to-school procedures. While many schools have opted to begin the year fully virtual given the risks presented by Covid-19, educators in some of those districts are still being required to teach from their classrooms. Even with requirements to wear masks, many teachers feel coming into school buildings is an unnecessary risk during the pandemic, for reasons including poor ventilation, slow coronavirus testing, and unreliable levels of personal protective equipment.
Late last week , Jeffrey Riley, the Massachusetts Commissioner of Elementary and Secondary Education, released guidance saying it’s the state’s “expectation” that all teachers and critical support staff will report to schools to teach each day if their district is doing remote learning. Reasons Riley listed included “provid[ing] more consistency” for students, more reliable internet access and faster IT support, making it easier to collaborate with colleagues, and making it easier for administrators “to monitor the level and amount of instruction students receive.”
The president of the Massachusetts Teachers Association, Merrie Najimy, released a blistering statement in response to the state’s recommendation, accusing Riley of having a “fundamental lack of trust” in teachers to do their jobs without being supervised.
“It is paternalistic and punitive and has no bearing on the quality of education that the real experts — the educators — provide so masterfully,” Najimy wrote, urging for districts to reject the state’s guidance. “Educators across the Commonwealth are focused on fully redesigning remote instruction to make it more effective, while pushing school districts and the state to make the changes needed to gradually return to in-person instruction. Commissioner Riley should be advocating for the resources that educators and districts need to achieve these goals rather than putting the thumbscrews to teachers to get them to return to school buildings before it is safe to do so.”
Scott McLennan, a spokesperson for the union, told The Intercept that districts and unions are still negotiating reopening plans, so they’re still “waiting to see how it plays out.” At least a few large school districts in the state, like Springfield and Worcester, have said they will not require teachers to come to school for remote instruction.
Read Our Complete Coverage The Coronavirus Crisis
Joanna Plotz, an elementary ESL teacher in Chelsea, a city with among the highest rates of Covid-19 infections in the state, is hoping her union succeeds in blocking the recommendation. “In an ideal world I’d obviously love to be in a classroom, but it just doesn’t feel worth it,” said Plotz.
If teachers at Plotz’s school are required to return to school, Plotz would be sharing a classroom with another educator, who has a 3-year-old daughter. Many teachers would like the option to go in. “I might want to go in sometimes. I live in a 500-square-foot-apartment, and Sundays it might be good to go in and prepare things, but I’d only want to do it if the other teacher and her daughter wouldn’t be there,” said Plotz. “And I do have some coworkers who are going crazy at home. But the way [the state] is doing it just says, ‘We don’t trust teachers.’”
Reached for comment, Colleen Quinn, a spokesperson for Commissioner Riley, defended the guidance. “In remote scenarios, instruction from the classroom is the most effective educational environment,” she said.
In other parts of the country, some teachers are already back at school providing remote instruction to students at home.
Erin Taylor, a middle school teacher in Colorado Springs, Colorado, said she still has not received a real explanation from her district as to why educators have to be teaching remotely from their school buildings.
“As teachers we always have to have an answer when our students ask us, ‘Why do we have to learn this?’ and I have not heard any answer from the district,” said Taylor. “It feels like a lack of trust, a surveillance thing, and I would totally be open and love to hear how they arrived at this decision, even if I disagreed with it. But we haven’t even gotten that.”
Devra Ashby, a spokesperson for the school district told The Intercept that it is their goal “to provide a standard professional instructional delivery setting and enhanced teacher classroom performance” and that teachers “have the most resources at their fingertips when they are in their classrooms.” Ashby added that one-third of their students will be coming into the building for hybrid learning and that their standards for education have not changed. “We must deliver industry-standard instructions in a professional academic setting, which promotes student academic potential and achievement,” she said.
Taylor said there has been mixed messaging around masks. Colorado has a statewide mandate that says individuals must wear masks when inside public places, and she says her school district has also advised educators to wear masks at all times, but that policy is not being enforced at every school.
“I’ve been back at school for over two weeks now and I just see a lot of people not wearing masks even though that’s supposed to be the official policy,” she said. “I’ve walked past people where there are meetings going on and a bunch of people sitting around the table not wearing masks.”
Taylor, who spoke to The Intercept on the second day of the school year, said she’s trying to be empathetic but is worried about how unsafe she already feels.
“We always talk as teachers about how the beginning of the year is the time to reinforce routine and rules and make sure you’re being clear, because with kids, if you don’t enforce a rule at the beginning, it becomes really hard to get that [compliance] later on,” she said. “It just feels like, well, if we’re not all wearing masks on Day 2, then I don’t have much hope for the year.”
Shawntel Shirkey, a paraeducator in Wichita, Kansas, also has to come into her high school for remote instruction. Earlier this month, the Wichita school board approved in-person learning for elementary schools and remote learning for middle and high school students.
Shirkey thinks given the conservative political climate in Kansas, her school board “made the best decision I could hope for.” At least one teacher at her school has tested positive for Covid-19 so far, but she praised her school for at least giving all staff members cloth masks, ample amounts of sanitizer and disinfectant, and the option to get face shields. “The district itself is not being very forthcoming but I’m lucky that my principal is being transparent about if someone has tested positive,” Shirkey said. Like in Taylor’s school, masks mandates don’t always mean staff actually wears them.
Shirkey thinks it’s been “pretty split” among teachers about who wants to be providing remote instruction from school. “Some educators definitely see the irony of requiring teachers to come into buildings that the district has deemed unsafe for students,” she said. “But others just think the pandemic is ridiculous and as soon as the election is over, coronavirus is going to go away.”