A federal judge has delayed the execution of the only woman on federal death row after two of her attorneys — Tennessee-based public defenders — contracted severe cases of COVID-19.
Lisa Montgomery’s execution has been delayed until at least Dec. 31 under an order filed Thursday by U.S. District Judge Randolph D. Moss in Washington, D.C. A new date has not yet been set.
Assistant federal public defenders Kelley Henry and Amy Harwell, based in the Middle Tennessee District, asked the court to delay the execution after they each caught COVID-19 during last-ditch efforts to save Montgomery’s life.
Their symptoms have limited their ability to file a clemency petition to President Donald Trump, the court found.
“The public’s interest in seeing justice done lies not only in carrying out the sentence imposed years ago but also in the lawful process leading to possible execution,” Moss wrote.
“Given the gravity of the circumstances and the extraordinary circumstances of the pandemic, the Court concludes that the balance of equities and the public interest weigh in Plaintiff’s favor. But the Court will also fashion its injunction to give due respect to the interest of Defendants and the public in avoiding unjustified delays in capitals (sic) cases.”
Montgomery was convicted in 2007 of fatally strangling a 23-year-old pregnant woman, cutting her body open and kidnapping her baby.
She was scheduled to die by lethal injection on Dec. 8 in Terre Haute, Indiana, the first female inmate expected to be put to death by the U.S. government in more than six decades.
Under Thursday’s order, Harwell and Henry must finalize the clemency petition as soon as they are able. If they’re still too unwell to do so without further assistance by Dec. 24, they’re ordered to add other attorneys or ask the court to appoint additional qualified lawyers to the case.
“The district court’s ruling gives Lisa Montgomery a meaningful opportunity to prepare and present a clemency application after her attorneys recover from COVID.
“Mrs. Montgomery’s case presents compelling grounds for clemency, including her history as a victim of gang rape, incest, and child sex trafficking, as well as her severe mental illness. She will now have the opportunity to present this evidence to the President with a request that he commute her sentence to life imprisonment,” said Sandra L. Babcock, Clinical Professor of Law, Cornell Law School in an emailed release. Babcock has previously entered declarations to the court on the case.
Only woman on death row
A federal judge appointed the Tennessee attorneys to assist on the case, as fellow counsel did not have capital case experience.
Harwell and Henry believe they caught the virus in a series of visits to Montgomery in a Texas federal prison when they visited to help console her, prepare her clemency petition and prepare her for her scheduled death.
“They got sick trying to protect her from this execution,” Federal Public Defender for the Middle District of Tennessee Henry Martin said in an interview Tuesday.
Each visit involved two plane flights, transit through two airports, hotel stays and interaction with dozens of people, including airline attendants, car rental employees, passengers and prison guards, court documents said of the trips taken by Henry and Harwell.
Montgomery’s original Dec. 8 execution date was announced Oct. 16. They visited the Texas prison where she is housed on Oct.19 and 26 and Nov. 2, according to their office. By Nov. 11, both attorneys had tested positive for COVID-19.
As detailed in declarations to the court, they each have a range symptoms, including headaches, chills, sweats, gastrointestinal distress, inability to focus and impaired thinking and judgment.
Moss’ order highlighted the unique challenges around the still barely-understood virus affecting lead attorneys on a capital case.
“The Court can only speculate today about the future course of a disease that is, by all accounts, unpredictable and, at times, gravely debilitating,” he wrote. “The Court, accordingly, finds that Harwell and Henry are currently unable meaningfully to assist in the preparation of Plaintiff’s clemency petition.”
Mental issues vital to clemency push
Montgomery was convicted of killing 23-year-old Bobbie Jo Stinnett in the northwest Missouri town of Skidmore in December 2004.
Montgomery drove from her Kansas home to Stinnett’s house in Skidmore under the guise of adopting a rat terrier puppy, prosecutors said. When she arrived at the home, Montgomery used a rope to strangle Stinnett, who was eight months pregnant, but Stinnett was conscious and trying to defend herself as Montgomery used a kitchen knife to cut the baby girl from the womb, authorities said.
Montgomery removed the baby from Stinnett’s body, took the child with her, and attempted to pass the girl off as her own, prosecutors in her trial said.
In response to the recent push to delay, the prosecution has argued they have already granted an extension of the deadline to file the needed clemency paperwork.
Investigation into Montgomery revealed a lifetime of mental, physical and sexual abuse, as well as serious brain injuries.
Court documents indicate she is a victim of incest, child sex trafficking, gang rape, physical abuse and neglect, largely at the hands of family members. Her doctors have also reported congenital brain damage and multiple traumatic brain injuries that her attorneys say “have resulted in incurable and significant psychiatric disabilities.”
In prison, she’s given a cocktail of anti-psychotic, anti-epileptic, and anti-depressant medications to help treat her illnesses, court documents indicate.
Attorneys say Montgomery’s mental illness is a critically important issue relevant to a request that Trump commute her sentence to life without parole, but travel restrictions and virus risks have limited the ability of mental health experts familiar with her history to evaluate her status.
Federal executions could stop under Biden
Montgomery would be the ninth federal inmate to put to death since the Justice Department resumed executions in July after a nearly 20-year hiatus.
Before the resumptions of executions this summer, federal authorities had executed just three prisoners in the previous 56 years.
The resumption of federal executions started July 14, with the execution of former white supremacist Daniel Lewis Lee. Since then, six others have been put to death. Another man, Orlando Hall, was scheduled to be executed Thursday.
President-elect Joe Biden, set to step into office in January, has signaled his intent to eliminate the death penalty at the federal level. Any further a delay could mean life or death to Montgomery and her companions on death row.
Montgomery has been on suicide watch, court documents show, in solitary confinement where the lights are always on and she is constantly monitored.
All of her possessions were taken away from her, including family photos, legal materials, her wedding band and reading materials, attorneys report, and was only permitted a single crayon and a piece of paper.
Montgomery was only allowed to wear a “safety smock,” described in court documents as a “flexible garment held shut by insecure Velcro straps” that “frequently exposed Mrs. Montgomery’s body to prison guards, including her breasts, pubic area and genitalia.”
The loss of her underwear was particularly traumatizing to her as a victim of sexual assault, Montgomery’s attorneys wrote.