Lawyers for Lisa Montgomery Contract COVID-19 During Prison Visits, Seek Stay of Execution

Lawyers for federal death-row prisoner Lisa Montgomery filed suit in federal district court in Washington, D.C. on November 12, seeking to stay her December 8 execution because the lead counsel in her case have contracted the coronavirus.

A stay is necessary, the complaint alleges, because Montgomery’s lawyers “cannot represent her because they are seriously ill, through no fault of their own. On the contrary, they are sick because [Attorney General William] Barr recklessly scheduled Mrs. Montgomery’s execution in the middle of the Covid-19 pandemic. But for Barr’s action, counsel would not have been stricken with the disease that is ravaging the country.” Montgomery will be denied access to the courts and to the clemency process if the execution occurs as planned, the complaint asserts.

In court proceedings on Friday, November 13, U.S. District Court Judge Randolph D. Moss ordered federal prosecutors to respond over the weekend, saying prompt consideration of the matter was essential to provide the parties time to appeal whatever decision he makes. Moss scheduled argument on the complaint for Monday afternoon, November 16.

The Department of Justice announced Montgomery’s execution date on October 16, affording counsel just 30 days to prepare a clemency petition. Assistant Federal Public Defenders Kelley Henry (pictured) and Amy Harwell have represented Montgomery for years and had been preparing her clemency petition. The lawsuit, filed on Montgomery’s behalf by lawyers from the Cornell Law School’s International Human Rights Clinic, asserts that, as a result of Montgomery’s serious mental illness and fragile emotional state, the defenders were required — against medical guidance from the Centers for Disease Control — to make a number of in-person visits from their home base in Nashville, Tennessee to Fort Worth, Texas where Montgomery is imprisoned.

“Mrs. Montgomery’s mental health — and the extent to which she is able to grasp what is happening to her — lies at the core of her efforts to obtain a reprieve and a commutation of her sentence to life imprisonment,” the complaint reads. “For this reason, among others, it is vital that counsel be able to meet with Mrs. Montgomery in person to evaluate her mental status. This is particularly vital since, as a result of the pandemic, the mental health experts who have evaluated Mrs. Montgomery in the past are unable to travel to the prison.”

Henry and Harwell traveled to visit Montgomery three times after her execution was scheduled. They said her mental condition had deteriorated and they “spent hours trying to calm her, explain the status of her case, and ascertain her current mental health status” during their visits. Both began experiencing COVID-19 symptoms a few days after their third visit on November 2, and both tested positive for the novel coronavirus. The complaint said they are “experiencing debilitating symptoms, including overwhelming fatigue, headaches, chills, sweats, gastro-intestinal distress, inability to focus, and impaired thinking and judgment.”

At the November 13 hearing, Cornell law professor Sandra Babcock told the court that “Mrs. Montgomery’s lawyers now are in bed as I speak, they are really not functional.” She said that the Department of Justice had refused to extend the November 15 deadline for filing Montgomery’s clemency petition and a stay was necessary because it was “not feasible” for Henry and Harwell to prepare the petition even with a two-week extension “given their illness and the strictures under which they are working.”

The American Civil Liberties Union released findings earlier this year that suggested that the 2020 federal execution spree had contributed to a spike in coronavirus cases. In an interview with the HuffPost, Babcock expressed outrage that the Department of Justice would continuing carrying out executions as COVID-19 infections surged.

The lawyers’ illness “is directly traceable to the government’s irresponsible decision to schedule this execution in the middle of a pandemic,” Babcock said. “It is really just beyond the pale.”

In a November 12 letter to President Trump, the American Bar Association President Patricia Lee Refo expressed “urgent concern” about the federal government’s intent to carry out three more executions during “a startling surge” in COVID-19 cases. She said the execution plans endangered “due process, lawyers’ ability to advocate zealously for their clients, and lawyers’ individual health and safety.”