Judge Opens Door To Execution Delay After Attys Get Virus

By Emily Sides
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Law360 (November 18, 2020, 8:22 PM EST) -- A Washington, D.C., federal judge hinted Wednesday that a death row inmate whose attorneys contracted COVID-19 may have an avenue to delay her Dec. 8 execution date, after having expressed skepticism at a previous hearing.

During a virtual hearing, U.S. District Judge Randolph Moss said case law and a federal statute that requires experienced representation for indigent defendants "suggest there is a right to continuity [of counsel] due to the high stakes of the death penalty."

This marked a different tone than the one the judge struck at a hearing Monday, when he suggested that delaying inmate Lisa Montgomery's execution would be up to the U.S. government and not him.

Montgomery's clemency petition is asking President Donald Trump to change her death sentence to a life sentence without the possibility of parole. An attorney for the federal government, Alan T. Simpson, suggested during Monday's hearing that Montgomery's request would interfere with the president's powers of clemency.

Judge Moss disagreed Wednesday, saying that ensuring Montgomery has access to the clemency process does not interfere with the president's ability to decide the petition's ultimate outcome.

Judge Moss asked Montgomery and the federal government to submit documentation showing whether Montgomery's attorneys were appointed under the federal public defender law by 4 p.m. Wednesday.

Montgomery, who is imprisoned in Fort Worth, Texas, sued U.S. Attorney General William P. Barr and other defendants on Nov. 12 after two of her attorneys were unable to work due to COVID-19, which they purportedly contracted when visiting Montgomery in prison. Montgomery asked the court to delay her execution so she can have additional time for her lawyers to recover and work on her clemency request.

Montgomery was convicted in 2007 of a kidnapping that resulted in the death of an eight-months-pregnant woman and cutting out the woman's baby, who survived.

Montgomery's attorney Lisa Nouri told Judge Moss on Wednesday that she and two other attorneys, Supervisory Assistant Federal Public Defender Kelley Henry and Assistant Federal Public Defender Amy Harwell, were appointed in November 2012 to Montgomery's case under the federal law for indigent defendants.

Henry and Halwell began showing virus symptoms in early November after multiple in-person visits to Montgomery to work on her clemency request, according to Montgomery's complaint. They tested positive for COVID-19 on Nov. 10 and Nov 11, after visiting their client at Federal Medical Center Carswell in Texas between Oct. 21 and Nov. 2.

Montgomery filed a placeholder clemency petition on Monday and is allowed to update her petition until Dec. 1. Montgomery wants the court to grant a four-week delay of her execution from when her attorneys began showing symptoms in early November, according to another attorney for Montgomery, Sandra L. Babcock, who is clinical professor at Cornell Law School's International Human Rights Clinic.

Simpson countered Wednesday that Montogmery still has access to the clemency process. He argued that even though Henry and Harwell were assigned to Montgomery's case, their office, the Federal Public Defender for the Middle District of Tennessee, was the one first appointed to Montgomery's case, so that office could pick up where Henry and Harwell left off. He also added that Nouri could take over the clemency petition.

"I don't think there is any suggestion that the Tennessee public defender's office would be unable to submit a very good clemency petition," Simpson said.

But Babcock said new attorneys for Montgomery's petition would require months to get acquainted with the case.

"All we are asking for is let [Montgomery] be represented by Henry and Harwell," Babcock told the court.

Attorneys for Montgomery declined to comment. Attorneys for the government 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 Alanna Weissman.

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

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