DC Judge Delays Execution After Convict's Attys Get Virus

By Kevin Penton
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Law360 (November 19, 2020, 10:47 PM EST) -- A District of Columbia federal judge on Thursday postponed a death row inmate's upcoming execution after two of her attorneys contracted COVID-19, determining that the woman would otherwise be deprived of "meaningful representation" as she seeks clemency.

U.S. District Judge Randolph D. Moss ordered that the execution date for Lisa Montgomery be pushed back from Dec. 8 to Dec. 31, while not barring President Donald Trump or other federal officials in the interim from taking "adverse action" on the inmate's clemency request for her sentence to be commuted to life without parole, according to Thursday's order.

Two of Montgomery's attorneys — public defenders Amy Harwell and Kelley Henry — tested positive for COVID-19 shortly after they visited their client in prison in late October and early November. The lawyers assert they have "severe" cases of the virus that do not allow them to perform the detailed work necessary for Montgomery to file a comprehensive clemency petition before the execution date, according to court documents.

While Montgomery has other lawyers working on her behalf, Judge Moss agreed that none understand their client's case as well as Harwell and Henry — who have represented the woman since November 2012 — and none are as similarly capable of filing the clemency petition, according to a memorandum accompanying Thursday's order.

"Although the court does not doubt that, with adequate time, another lawyer could come up to speed and could replace Harwell and/or Henry as 'qualified counsel,' that is neither possible in the next 11 or 12 days nor consistent with [a federal statute's] emphasis on continuity of counsel," Judge Moss wrote.

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

Montgomery sued U.S. Attorney General William P. Barr and other federal officials on Nov. 12, arguing the court should delay her execution to allow her attorneys time to recover and work on her clemency request.

The federal government pushed back on the request, arguing in part that Montgomery had sufficient time to prepare her clemency petition and was simply using COVID-19 as an excuse, according to court documents.

But Judge Moss rejected that argument on Thursday, noting Montgomery lost a rehearing petition before the U.S. Supreme Court in August, "leaving her with only a few months' time."

"Plaintiff has offered convincing evidence that Harwell and Henry have not dragged their feet and have not engaged in any gamesmanship," Judge Moss wrote.

Judge Moss' ruling will give Montgomery more time for Harwell and Henry to recover from COVID-19 and prepare an application that should provide "compelling grounds for clemency," including that she has "severe" mental illness and has a history of being a victim of child sex trafficking, incest and gang rape, Sandra L. Babcock, an attorney representing Montgomery, said in a statement on Thursday.

"She will now have the opportunity to present this evidence to the president with a request that he commute her sentence to life imprisonment," Babcock said.

Counsel for the federal government could not be reached for comment on Thursday.

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

The federal government is represented by Johnny H. Walker of the U.S. Attorney's Office for the District of Columbia and Alan T. Simpson, Timothy A. Garrison, Jeffrey Ray and Brian P. Casey of the U.S. Attorney's Office for the Western District of Missouri.

The case is Montgomery v. Barr et al., case number 1:20-cv-03261, in the U.S. District Court for the District of Columbia.

--Additional reporting by Emily Sides. Editing by Janice Carter Brown.

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

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