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Navajo man no longer faces death penalty in officer’s slaying

November 20, 2018

Federal prosecutors will not pursue the death penalty after all in the case of a Navajo man accused of killing a tribal police officer last year.

With the Navajo Nation officially opposed to the death penalty, the federal government’s push following the shooting of Officer Houston Largo raised broader questions about the use of capital punishment in Indian Country — and in turn, about sovereignty.

New Mexico abolished the death penalty in 2009 but the federal government still uses capital punishment and is often responsible for prosecuting major crimes, such as murder, on tribal lands around the state.

So, it fell to the U.S. Attorney for New Mexico to prosecute when Largo was killed during a traffic stop north of Thoreau in March 2017.

Authorities charged Kirby Cleveland, alleging he recounted shooting a police officer to his wife after the killing. Cleveland also was under supervised released following a previous felony conviction.

In January, prosecutors filed notice of intent to pursue the death penalty.

The filing came amid reports the administration of President Donald Trump planned to pursue more death penalty cases than his predecessors. And prosecutors initially seemed unmoved by the tribe’s formal objections to capital punishment.

Federal law usually defers to tribes on the question of whether to pursue the death penalty in a case stemming from tribal land.

In a letter last year, Navajo Nation Attorney General Ethel Branch repeated the Navajo government’s official position that “capital punishment is not an acceptable form of punishment.”

“The death penalty is counter to the cultural beliefs and traditions of the Navajo People who value life and place a great emphasis on the restoration of harmony through restoration and individual attention,” Branch wrote, citing the tribal government’s position set out years earlier.

Only one tribe, the Sac and Fox of Oklahoma, is known to support the federal death penalty.

Some citizens of the Navajo Nation have pushed tribal officials to sign off on the federal death penalty, such as when Tom Begaye Jr. kidnapped, sexually assaulted and killed 11-year-old Ashlynne Mike near Shiprock in 2016.

Regardless, the U.S. Attorney’s Office said earlier this year the tribe’s position was not binding. A spokesman for then-Attorney General Jeff Sessions suggested Kirby’s case was particularly serious because it involved the killing of a law enforcement officer.

It is unclear why U.S. Attorney John Anderson pulled back from plans to pursue capital punishment in Cleveland’s case. A spokesman declined to comment on Monday beyond a one-page motion prosecutors filed in U.S. District Court in Albuquerque.

Largo’s mother and Cleveland’s attorneys could not be reached for comment.

Most cases in which the federal government says it will pursue the death penalty do not go to trial as capital cases, said Robert Dunham, executive director of the Death Penalty Information Center.

The reason is often particular to the case, he added.

“Sometimes it is the weakness of the government’s evidence or problems with the credibility of prosecution witnesses. Sometimes the victim’s family strongly opposes the death penalty,” Dunham said. “Sometimes the strength of the mitigating evidence the defense has discovered convinces the prosecution that a jury isn’t likely to vote for death or the defendant doesn’t deserve the death penalty. Or it can be a combination of factors.”

Cleveland’s attorneys have filed a flurry of motions in recent months arguing the death penalty is unconstitutional for several reasons.

Cleveland’s attorneys pointed out a jury would have to include members who accept capital punishment. In a state that abolished the death penalty nearly a decade ago, such a group of jurors would not represent the broader population, they argued.

Moreover, Cleveland’s attorneys argued, the death penalty is applied arbitrarily and unevenly.

“It is unfair to sentence someone who witnesses describe as paranoid and highly intoxicated at the time of a shooting that took place in utter darkness to die in prison for a homicide precipitated by a life of struggle when terrorists, vicious gang members, and mass murderers are not sentenced to death,” lawyers Donald Kochersberger III and Theresa Duncan wrote.

The federal death penalty, they added, “is fundamentally incapable of answering in a rational and predictable way the profound question of who should live and who should die.”

A federal judge had set a three-day hearing on the motions for next week.

Prosecutors have moved to cancel and re-set the hearing, potentially putting off for now a showdown over the very future of the death penalty.

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