Covid Sidelines Counsel for Only Woman on Federal Death Row

Lisa Montgomery was 36 when she murdered a 23-year-old pregnant woman in Skidmore, Missouri, on July 16, 2004. (Image via Courthouse News)

WASHINGTON (CN) — Attorneys fighting to save the only woman on federal death row from execution next month sued the Trump administration on Thursday after coming down with Covid-19.  

Lisa Montgomery, 52, was convicted of kidnapping resulting in death in 2008. She is scheduled to die on Dec. 8 in Terre Haute, Indiana, as part of a series of executions that critics say Trump lined up to reinforce his “law and order” campaign promise. The Supreme Court rejected a request to hear her case in August. 

Her long-serving attorneys, Amy Harwell and Kelley Henry, tested positive for Covid-19 this week after visiting Montgomery four times at a federal prison in Fort Worth, Texas, between Oct. 20 and Nov. 1. 

Just days after conferring with their client, the lawyers lost their sense of smell and came down with other tell-tale symptoms like body aches.

Having represented Montgomery since 2012, the two women say they now face quarantine measures that will frustrate their completion of a clemency petition. 

“They may not enter their offices to access their paper files in Mrs. Montgomery’s case,” says the complaint, which was filed by the firm Ungvarsky Law and by professors with the International Human Rights Clinic at Cornell Law. “They are prohibited from traveling to meet with their client and to speak to witnesses.”

Given these circumstances, Harwell and Henry say Montgomery’s execution should be put on hold “until such time that her counsel may represent her without danger to themselves or the public and that experts may conduct assessments and offer evidence in her clemency proceeding.”

They argue that Attorney General William Barr deliberately scheduled the execution during the height of the pandemic “without affording her lawyers the same degree of notice afforded to other death-sentenced prisoners.” 

Experts have been unable to travel to the federal prison to provide independent assessments of the prisoner’s current mental status, according to the complaint, and attorneys have been unable to interview potential witnesses remotely “because of the sensitive nature of many of the interviews, which detail family physical and sexual abuse.” 

“Given the fragility of Mrs. Montgomery’s mental health, and counsel’s inability to visit her, counsel is unable to monitor her mental condition and provide accurate, contemporaneous information to the Defendants about a crucial aspect of her clemency campaign,” the complaint states. 

As of last month, the pandemic’s toll on the U.S. prison system has included more than 168,000 confirmed cases and 1,060 deaths — the vast majority of them inmates, according to figures from the National Commission on Covid-19 and Criminal Justice. 

While legal teams across the country have been instructed to stop in-person client visits, Harwell and Henry were granted an exception to visit Montgomery after her execution was set last month. 

The women say they contracted the deadly disease despite having washed their hands frequently and taken other precautions such as wearing masks and maintaining social distance.

Their client is set to become only the third woman in United States history to be executed. 

The first, Ethel Rosenberg, was sentenced to death by electrocution for espionage in 1953, followed by Bonnie Brown Heady’s execution by gas for kidnapping and murder that same year, according to the Federal Bureau of Prisons.

Montgomery has been imprisoned since 2004 when she strangled a pregnant woman and cut out the baby from her womb, then pretended it was her own.

More than 1,000 organizations and individuals have called on the Justice Department to grant Montgomery life imprisonment without the possibility of parole. They argue she suffers from severe mental illness and was sexually abused and trafficked as a minor.  

The heads of three groups that advocate for people with serious mental illness explained in a letter to Trump on Wednesday that Montgomery was born with brain damage because her mother abused alcohol during pregnancy.  

She has been diagnosed with bipolar disorder with psychosis, a severe condition that leads to mania, hallucinations and a “loss of contact with reality,” they wrote.  

Four former prosecutors who brought cases for similar crimes committed by women against pregnant women also wrote to the president this week. They said such crimes are “inevitably the product of serious mental illness,” committed by women who were themselves victimized. 

The Justice Department claims Montgomery’s legal team has run out of avenues to appeal her conviction and sentence. But a court-ordered delay could buy her time to make a plea for clemency from President-elect Joe Biden after he takes office in January.

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