A federal court delayed the execution of Lisa Montgomery, the first woman to face the federal death penalty in decades, on Thursday because her attorneys caught Covid-19 and couldn’t prepare her clemency application.
The court order, signed by U.S. District Judge Randolph Moss, blocks the federal government from executing Montgomery before the end of the year. That will give her lawyers — Amy Harwell and Kelley Henry — time to prepare a petition to president for a commuted sentence.
“For present purposes, it is sufficient for the Court to stay Plaintiff’s execution — briefly — to permit Harwell and Henry to recover from their illness and to have a short time to finish their work in supplementing Plaintiff’s placeholder petition for a reprieve or commutation of sentence,” Moss wrote in his opinion, though he further ordered that Harwell and Henry would have to say by Dec. 24 whether or not they would be able to complete the petition without help.
Last month the The U.S. Justice Department scheduled her for lethal injection on Dec. 8 in Indiana. It would be the first federal execution of a woman in almost 70 years. Montgomery was convicted of strangling a Missouri woman who was eight months pregnant woman in 2007 and taking her unborn baby, who survived.
Harwell and Henry said in a lawsuit filed Thursday that because Attorney General William Barr scheduled Montgomery’s execution during the pandemic, they were forced to travel and caught the virus as a result.
The two attorneys traveled from Nashville to Texas twice in October and again earlier this month, despite their office’s decision to follow Centers for Disease Control and Prevention guidance to have them work from home. Both attorneys tested positive for the virus earlier this month.
“Each round trip 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,” the court document said.
“They are sick because Defendant Barr recklessly scheduled Mrs. Montgomery’s execution in the middle of the Covid-19 pandemic,” said the federal lawsuit filed for Montgomery by Cornell Law School’s International Human Rights Policy Advocacy Clinic.
Sandra Babcock, one of the lawyers who represented Montgomery in the lawsuit against Barr, said Moss’s decision would give Montgomery’s attorneys time to ready the clemency application after they recover from Covid-19.
“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,” Babcock said. “She will now have the opportunity to present this evidence to the President with a request that he commute her sentence to life imprisonment.”
The Justice Department did not immediately respond to a request for comment but said that Harwell and Henry should have already prepared the clemency application by now, according to court documents. They also argued that a third lawyer could take Montgomery’s case and that a delay would interfere with the president’s constitutional powers to grant reprieves and pardons.
Montgomery’s lawyers have argued that she suffers from “several mental disabilities that frequently cause her to lose touch with reality.” These mental health issues have only gotten worse during the pandemic, they said in court documents, because she could not access mental health care or her lawyers.
More than 1,000 advocates recently signed a series of letters sent to the federal government arguing that mental illness and the physical and sexual trauma that she survived, as well as Montgomery’s experience being sexually trafficked as a child, meant the death penalty was an inappropriate punishment.
“Although Lisa committed terrible crimes, her lifetime of extreme suffering and abuse weighs heavily in favor of clemency,” dozens of former and current prosecutors said in one letter to President Donald Trump. “You alone have the power to grant her mercy and spare her life, and we urge you to do so.”