Judge Skeptical Of Suit To Delay Execution Over Sick Attys

By Emily Johnson
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Law360 (November 16, 2020, 10:37 PM EST) -- A federal judge in Washington weighing a death row inmate's request to delay her Dec. 8 execution because two of her attorneys are sick with the coronavirus suggested Monday that such a move would be up to the U.S. government and not him.

During a virtual hearing on Monday, U.S. District Judge Randolph Moss recommended that Lisa Montgomery file her request for clemency and her request for a delay to her execution date with the federal government by the deadline, which is the end of Monday. He did not issue an opinion on Montgomery's suit during the proceeding. 

Judge Moss said he acknowledges that two of Montgomery's attorneys being sick may mean Montgomery would need to finish her clemency request with one hand tied behind her back, but the judge stopped short of saying Montgomery is denied access to the process. Judge Moss said the death row inmate still has access to the process even if it is limited access.

"I will get you all a decision as soon as I can," Judge Moss said.

On Nov. 12, Montgomery sued U.S. Attorney General William P. Barr and other defendants in the federal government, alleging that they trampled on her right to seek mercy by not allowing her enough time to work on her request.

Montgomery, who is imprisoned in Fort Worth, Texas, was convicted in 2007 of kidnapping that resulted in death over the killing of an eight-months pregnant woman and cutting out the woman's baby, who survived.

In her complaint, Montgomery said her request for clemency — which is expected to ask that her execution be reduced to a life sentence without the possibility of parole — was unexpectedly stopped after her two attorneys, Supervisory Assistant Federal Public Defender Kelley Henry and Assistant Federal Public Defender Amy Harwell, tested positive for the coronavirus on Nov. 10 and 11, respectively.

The attorneys contracted the virus after visiting their client at Federal Medical Center Carswell in Texas, and have been unable to properly finish her request, Montgomery has said.

On Monday, an attorney for the federal government, Alan T. Simpson, told the judge that Montgomery has other attorneys who can work on her clemency request and pushed back on Montgomery's claims that she has not had meaningful access to the process.

"I'm skeptical there is no work product [for Montgomery's clemency request] created by Nov. 5 or Nov. 6," said Simpson, an assistant U.S. attorney for the Western District of Missouri and special assistant U.S. attorney for D.C.

Simpson also argued that the clemency process falls under the U.S. president's authority. Montgomery's legal action represents an attempt to manage the president's power to commute a sentence or grant a reprieve, he told the court.

However, another attorney for Montgomery, Sandra L. Babcock, clinical professor at Cornell Law School's International Human Rights Clinic, called attention to court decisions that she said provided the judge with a path to intervene.

"We believe that the court can offer tailored relief," Babcock said.

Babcock told the judge that Montgomery does not have meaningful access to the clemency process because Henry and Harwell are sick and quarantined.

Currently, Montgomery must file at least a placeholder request for clemency by Monday, according to Babcock, who added she would be able to add to that request until Dec. 1. Montgomery wants the court to grant a 4-week delay from when her two attorneys began showing symptoms of the virus in early November, Babcock said.

Babcock said the federal government's decision to schedule Montgomery's execution during a pandemic was reckless by disregarding the lawyers' health and has kept those lawyers from completing Montgomery's clemency request.

"Our message at today's court hearing was loud and clear: The government may not execute Mrs. Montgomery while her two long-standing attorneys are stricken with COVID-19 and are unable to prepare a clemency petition by the deadline set by the government," Babcock said in an email to Law360.

Attorneys for Barr did not immediately return 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; Alan T. Simpson, assistant U.S. attorney for the Western District of Missouri and special assistant U.S. attorney for D.C.; U.S. Attorney for Western District of Missouri Timothy A. Garrison; Jeffrey Ray, deputy U.S. attorney for the Western District of Missouri; Brian P. Casey, chief of the appellate division for the Western District of Missouri; Michael R. Sherwin, acting U.S. attorney for the District of Columbia; and Daniel F. Van Horn, chief of the civil division for D.C.

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 Rebecca Flanagan.

For a reprint of this article, please contact reprints@law360.com.

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