Cases like this put Judge Reinhardt in a tough position.
It's a death penalty case, so you know how he's going to vote. It's currently a habeas case, but a federal one. Which means that there was also a prior opinion on direct appeal. Judge Reinhardt was on that panel as well. Which voted 2-1 to affirm. You can guess who the 1 was.
At this point, the claim is ineffective assistance of counsel. Notwithstanding Judge Reinhardt's dissent, there's not especially good evidence of attorney misconduct. It was a federal prosecution, so multiple veteran federal public defenders, plus an attorney in private practice, were assigned to represent the defendant at trial. This wasn't some backwater state prosecution with intoxicated lawyers doing a half-assed job just to make a buck. This was a real defense. So it's extraordinarily hard to find incompetent representation.
Oh, and who was the district court judge who oversaw the case? Judge Murguia. Currently on the Ninth Circuit.
So this leaves Judge Reinhardt with three options. All of which he advances.
First, he notes that it's pretty weird that this guy ends up being sentenced to death. Which is true. The victim's family doesn't want it. The Navajo Nation doesn't want it. The relevant U.S. Attorney doesn't want it. But John Ashcroft did. So a guy with no criminal history gets sentenced to death even though his more culpable partners get life. A result especially strange since the murder charge itself doesn't lead to the death penalty (since the Navajo Nation has opted out); only the fact that there was an underlying carjacking gets the dude sentenced to death.
This provides ample fodder for Judge Reinhardt's dissent. And he uses it well.
The only problem being that this isn't a legal argument against the imposition of the death penalty. So no relief there.
Second, Judge Reinhardt can go down the straightforward legal path and try to paint the lawyers as incompetent. Which he does. Well.
But, in my view, the facts just aren't there. Even if hindsight was 20/20, I'm not at all confident that Judge Reinhardt's preferred "he's a bad guy but had a bad upbringing" strategy was any better than the choice of the actual defense attorneys to paint him as a good guy who did a terrible thing. It's at least sufficiently close to make deference to the people with boots on the ground appropriate. So that doesn't work.
Which leaves Judge Reinhardt to ask the President for clemency. Which he does also. Again: Well.
There's lots to recommend such an approach. Plus, maybe it's possible. Maybe Obama or Clinton or someone else will listen.
But it's still a longshot. These are political issues. I'm not confident that a President will elect to use his or her capital on something like this. Especially since one of throats that was slit belonged to a nine year old girl.
This isn't a state case that has been around forever. It has progressed through the federal system fairly quickly. The murder was in 2001. The defendant was 20 years old at the time. The conviction and sentence have already been affirmed on direct appeal, and now the habeas petition has been denied on the merits. The only things left are a petition for rehearing and en banc review, and attempt at certiorari in the Supreme Court, and then a successive habeas petition. All of which are even less likely, in my estimation, than executive clemency.
So, absent a blanket moratorium, you're probably looking at someone who's actually going to be executed. Notwithstanding the fact that Mr. Mitchell is probably on the low end of the "irredeemably evil" scale as contrasted with his contemporaries on death row. The likelihood that this 35-year old guy dies in prison before the sentence is carried out is not especially high.
