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.”