WASHINGTON — The two attorneys representing the first woman scheduled to be put to death by the U.S. government in more than six decades are seeking to delay her execution because they’ve contracted coronavirus visiting their client.
The lawyers for Lisa Montgomery — who is scheduled to be executed by lethal injection on Dec. 8 at a federal prison in Indiana — asked a federal judge in Washington to extend the amount of time to file a clemency petition with the Justice Department.
At a hearing on Monday, Sandra Babcock, a human rights professor and director of the Cornell Center on the Death Penalty Worldwide, argued that Montgomery is indigent, severely mentally ill and can’t aid in filing her own clemency petition because she only has a “sheet of paper and a single crayon” in her cell at a federal prison in Texas, where she’s being held.
Babcock, who represented Montgomery’s interests at the hearing, argued repeatedly for U.S. District Judge Randolph D. Moss to issue an injunction that would give Montgomery’s attorney more time to prepare a clemency petition.
Montgomery’s attorneys, Kelley Henry and Amy Harwell, tested positive for COVID-19 after they flew to visit her at the prison last month from Nashville. In court papers, they said each roundtrip visit involved two flights, stays in hotels and interaction with airline and hotel staff, as well as prison employees.
Assistant U.S. Attorney Alan Simpson argued that the request was for a “reprieve,” a power only instilled to the president. He also argued it was not reasonable to ask to pause the process so Montgomery could be represented by specific lawyers and said she has other attorneys working on her case.
At one point, Simpson also argued that Montgomery does not need to be represented by an attorney at all, though Babcock argued that is inconsistent with the law.
Moss did not issue an immediate ruling but said he would encourage the Justice Department and President Donald Trump to consider whether there could be a short extension issued by the government in light of the “extraordinary” factors in the case.
The argument comes as the federal Bureau of Prisons still struggles with an exploding number of coronavirus cases behind bars.
As of Monday, 3,121 federal inmates and 1,049 staff members have confirmed COVID-19 cases at federal prisons around the U.S., including two inmates and three staff members at the prison where Montgomery is being held. Six inmates have died there and more than 500 other inmates at the prison were previously diagnosed with the virus but have since recovered, according to federal statistics.
Both of the attorneys have serious symptoms — including neurological symptoms — and are “functionally incapacitated” and thus unable to help file a clemency petition, Babcock argued in court.
Another attorney couldn’t just be assigned to file one because Montgomery’s mental status has deteriorated since the Justice Department scheduled her execution last month and she doesn’t trust many lawyers, but Henry and Harwell have worked with her for years and have gained her trust, Babcock said.
If Montgomery is executed in December, she would be the ninth federal inmate to put to death since the Justice Department resumed executions in July after a nearly 20-year hiatus. A separate execution is scheduled for this week.
Montgomery was convicted of killing 23-year-old Bobbie Jo Stinnett in the northwest Missouri town of Skidmore in December 2004, using a rope to strangle Stinnett, who was eight months pregnant, and then using a kitchen knife to cut the baby girl from the womb, authorities said.
Prosecutors said Montgomery removed the baby from Stinnett’s body, took the child with her, and attempted to pass the girl off as her own.