Mental Health Evidence in Death Penalty Mitigation

Facts of the Case

Lezmond C. Mitchell was convicted in federal court on two counts of first-degree murder, carjacking resulting in death, and multiple counts of robbery. The crimes were committed on a Navajo reservation in Arizona. Although the Navajo Nation opposes the death penalty and has opted out of capital punishment for crimes committed on Navajo territory, the charge of carjacking resulting in death falls under federal jurisdiction based on the Major Crimes Act (18 U.S.C. § 1153 (2000)) and is not subject to tribal jurisdiction. Mr. Mitchell, then 20 years old, acted with an accomplice, 16-year-old Johnny Orsinger, in the carjacking on October 28, 2001. In the course of the crime, the defendants killed a 63-year-old woman and her 9-year-old granddaughter. The woman was stabbed 33 times, and the girl had her throat slit twice and had large rocks dropped on her head. The two defendants later returned to hide the evidence and dismember and hide the bodies. Three days later, Mr. Mitchell and two other accomplices used the stolen vehicle to rob the Red Rock Trading Post (also on Navajo land) at gunpoint.

Mr. Mitchell was sentenced to life imprisonment for the two murder convictions, long consecutive prison sentences for the robbery and related counts, and death for carjacking resulting in death. He brought a motion to appeal alleging that he received ineffective assistance from his defense lawyers. The primary claim raised for the guilt phase was that counsel failed to assert an intoxication defense. The primary points raised for the penalty phase were inadequate investigation of his mental health, history of substance abuse, and troubled upbringing and the choice not to present evidence of these factors.

Ruling and Reasoning

The appellate panel held in a two-to-one decision that counsel was not negligent in investigating whether Mr. Mitchell was intoxicated at the time of the offense. The majority pointed out that he denied having been intoxicated. Defense counsel had searched for evidence to contradict the allegation at the scene of the crime, but had found nothing. Furthermore, Mr. Mitchell led authorities to the crime scene after apprehension, demonstrating that he was not so intoxicated that he lacked the ability to recall the events. As for the penalty phase, the majority ruled that there was a constitutionally adequate investigation of possible mitigation. The defense lawyers had Mr. Mitchell examined by a psychologist, Dr. Susan Parrish, early in the case, and by a team of doctors led by psychiatrist Dr. Barry Morenz at the University of Arizona Medical School. He was also examined by a neuropsychologist, Dr. Anne Henning, and a neurologist, Dr. Ronnie Bergen. Mr. Mitchell had undergone brain imaging, blood work, and an electroencephalogram. Both Dr. Parrish and Dr. Morenz diagnosed antisocial personality disorder. Dr. Morenz also included depressive disorder not otherwise specified, cognitive disorder not otherwise specified, polysubstance abuse, history of head injuries, and a “mild deficit” in executive functioning likely related to emotional factors, not brain trauma. Vera Ockenfels, an experienced mitigation specialist, was hired by the defense team and produced a 42-page, single spaced “social history” of Mr. Mitchell's life.

According to the holding, defense counsel made a strategic decision to forego presenting evidence of Mr. Mitchell's drug use, mental health, and physical abuse, because counsel did not want to expose damaging evidence or portray him as a sociopath. Counsel did not want to call Dr. Morenz to testify because it would require submitting his report to the prosecution, which could have exposed damaging facts that would have a “negative and adverse effect” on the jury. The document included Mr. Mitchell's history of cruelty to animals, gang involvement, violence, and facts regarding the crime that he revealed as motives for the killings.

Instead, the defense chose to present Mr. Mitchell's redeeming qualities that made his life worthy of saving. Counsel presented evidence that Mr. Mitchell felt unloved and rejected by his mother and his struggle with his mixed Navajo and Anglo heritage. Counsel presented his positive qualities of being a good student, a member of the student counsel, a speaker at his high school graduation, and a good athlete. Counsel called nine witnesses to support these assertions. They argued that if Mr. Mitchell's life were spared and he were sentenced to life without parole, he would adapt to prison and could have a positive impact on other inmates because of his history of responding well to structure, despite a lack of family support.

Dissent

Judge Reinhardt dissented. He opined that counsel's “good guy” defense was unreasonable in light of the horrific nature of the crime and that Mr. Mitchell was deprived of his Sixth Amendment right to effective counsel. The jury was never given the opportunity to understand what made Mr. Mitchell the person he became before sentencing him to death.

The dissent pointed out that the Navajo nation values life and views rehabilitation as a means of addressing criminal behavior, as opposed to sentencing someone to death, since most major crimes committed on the reservation tend to be precipitated by the abuse of alcohol. Ms. Ockenfels, counsel's experienced mitigation specialist, informed counsel that Mr. Mitchell began using drugs at age 11 and recommended further investigation into his addiction and that a forensic psychologist be hired to explain how Mr. Mitchell's upbringing caused him to turn to drugs and alcohol, but counsel chose not to pursue either of these suggestions. Counsel could have attributed Mr. Mitchell's drug and alcohol addiction, particularly considering its chronicity, to his self-medicating the trauma he endured and the mental illnesses that were later diagnosed. Further investigation would have revealed that Mr. Mitchell's polysubstance and alcohol use drastically escalated in the months preceding the crimes, leading, for example, to his staying up for three nights in a row. It would have also exposed his family history of alcoholism.

The defense focused on presenting Mr. Mitchell as a good person, instead of focusing on his drug and alcohol addiction, harsh upbringing, and the resulting emotional and mental conditions that followed. Further investigation into Mr. Mitchell's upbringing would have revealed that his mother and grandmother were physically abusive to him. Mr. Mitchell's mother and grandmother were also well aware that his grandfather had molested little girls. Despite this knowledge, they sent Mr. Mitchell to live with him for extended periods. His grandparents and his uncle also told him that he was a product of rape and that his grandfather was his real father. Mr. Mitchell's mother expressed uncertainty as to whether Mr. Mitchell himself may have been molested by his grandfather. The dissent pointed out that American Bar Association guidelines require an extensive investigation into personal and family history in death penalty cases, but this history was discovered only after his conviction and revealed that his home life was far more violent and dysfunctional than had been reported.