By Emily Johnson

Law360 (November 13, 2020, 10:46 PM EST) -- A death row inmate who strangled a pregnant woman and cut out her unborn child asked the D.C. federal court to delay her scheduled Dec. 8 execution after her two longtime attorneys contracted the coronavirus following prison visits with her, forcing them to lose valuable time on a request for mercy due Monday.

In a complaint filed Thursday, Lisa Montgomery alleged that U.S. Attorney General William P. Barr and other defendants in the federal government trampled on her right to seek mercy from her death sentence by not offering her enough time to work on her clemency request.

Montgomery, who is imprisoned in Fort Worth, Texas, was convicted of kidnapping that resulted in death over the killing of an eight-months pregnant woman and cutting out the woman's baby, who survived.

"At this late juncture, a competent presentation of clemency cannot be conducted by substitute counsel," according to the complaint. "Substitute counsel would need months to become fully acquainted with Mrs. Montgomery's case."

On Wednesday, 800 organizations and people sent a petition to President Donald Trump asking him to change Montgomery's death sentence to life in prison without the chance of parole in light of her history of being abused.

"A victim of trauma with serious mental health issues, including dissociative disorder directly linked to her experiences of sexual violence, Lisa's mental illness is inextricable from the crime she committed," the petition said. "...While her experiences of victimization and mental illness do not excuse her crime, they do help to explain what otherwise seems unimaginable."

Montgomery's attorneys, Supervisory Assistant Federal Public Defender Kelley Henry and Assistant Federal Public Defender Amy Harwell, tested positive for the coronavirus on Tuesday and Wednesday, respectively, after visiting Montgomery at Federal Medical Center Carswell in Texas. They have represented Montgomery since November 2012.

Henry and Harwell received permission to visit Montgomery in person because Henry Martin, the public defender for the Middle District of Tennessee, in March ordered all federal public defenders to stop in-person visits due to the coronavirus. After visiting their client multiple times from Oct. 21 through Nov. 2, Harwell began to show symptoms on Nov. 5 and Henry began to show symptoms on Nov. 7.

The attorneys met Montgomery in person to work on her clemency petition, which is due Monday. Montgomery was notified in mid-October that her execution was set for Dec. 8, according to her complaint.

Another attorney for Montgomery, Sandra L. Babcock, clinical professor at Cornell Law School's International Human Rights Clinic, told Law360 that Montgomery is asking to pause her execution until the federal government allows her to work on her clemency application beyond its current due date because of her attorneys' inability to properly attend to it.

"It actually gets me angry when I think about how Ms. Harwell and Ms. Henry were just carrying out their ethical obligations to their client as a result of the Justice Department's decision to schedule Ms. Montgomery's execution date at this time, which they did not have to do, and it's because of their reckless decision in scheduling her execution date that these two brilliant attorneys became ill with a disease that is potentially deadly."

Babcock said a clemency petition is a person's last opportunity to ask for mercy and that it's not about guilt or innocence. Montgomery has taken responsibility for and expressed remorse for her crime, and her request for clemency is not a request to be pardoned, but for her death sentence to be changed to life in prison without the possibility of parole, Babcock said.

Henry and Harwell are unable to work on Montgomery's clemency petition because doctors have ordered them to stop working. Both are experiencing symptoms, including unclear thinking, according to the complaint. In addition, mental health experts are unable to assess Montgomery in person due to the pandemic, which is expected to be an important part of her clemency request.

"They're in no position at all to work on this case, which is devastating for an attorney and for attorneys like Kelley Henry and Amy Harwell, who are two of the best post-conviction and clemency lawyers in the country," Babcock said.

On Aug. 3, the U.S. Supreme Court denied Montgomery's request to hear her case, and Barr and others told Montgomery in mid-October that her execution was set for Dec. 8, according to her complaint. Montgomery said this flies in the face of the U.S. Department of Justice's recommendation that at least 120 days pass between being denied certiorari and when a death row inmate is told when they'll be executed to allow the inmate sufficient time to apply for clemency.

In addition, Montgomery said that she was treated differently from the five federal death row inmates who requested clemency this year — those five had an average of 4.5 years between when their certiorari was denied and when they were notified of their execution date.

An attorney for Barr and others did not immediately respond to requests for comment.

Montgomery is represented by Sandra L. Babcock of Cornell Law School's International Human Rights Clinic, Joseph Margulies of Cornell University and Edward J. Ungvarsky of Ungvarsky Law PLLC.

Barr and others are represented by Assistant U.S. Attorney Johnny H. Walker.

The case is Montgomery v. Barr et al., case number 1:20-cv-03214, in the U.S. District Court for the District of Columbia.

--Editing by Nicole Bleier.

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