A federal judge in Washington indicated Wednesday that he may delay the execution of the only woman on federal death row because her lawyers have contracted COVID-19 during prison visits.
“There is a substantial argument that entitles [a defendant] to continuous representation by qualified counsel throughout the clemency process,” U.S. District Judge Randolph D. Moss said.
Lawyers for Lisa Montgomery, who is scheduled to be executed next month, are seeking to delay her death because they have become infected with the coronavirus while visiting the prison.
Assistant federal public defenders Kelley Henry and Amy Harwell said in a statement last week that they have “debilitating symptoms” and could not meet the Nov. 15 deadline for a clemency petition.
Instead, another lawyer filed a “placeholder” petition while they seek time to file a more robust petition. But time is running out, they say, as Montgomery’s execution is set for Dec. 8.
Another lawyer involved in the case, Lisa Nouri, says she has never prepared a clemency application and is not qualified to be lead counsel.
Sandra Babcock, a law professor at Cornell University, argued on behalf of Montgomery’s lawyers. She said Ms. Nouri doesn’t have the experience to take over the case.
“It would be a violation of [Ms. Nouri’s] ethical obligations to represent Ms. Montgomery in these proceedings because she’s just not qualified,” Ms. Babcock said.
Judge Moss appeared to have agreed, saying Montgomery has the constitutional right to have “qualified counsel continue the work.”
“I don’t know with any level of certainty how they are feeling today … how they are feeling tomorrow or if they can at least tell Ms. Nouri what needs to be done or how to complete a clemency petition in the time allowed,” the judge said.
Attorneys for the Justice Department said Ms. Nouri is capable of submitting a “very good” clemency application.
“She has intimate familiarity with the case, even if she was not leading the charge, she was there,” said Alan Simpson, a government attorney. “She has emails even if she didn’t consider herself the lead drafter.”
Mr. Simpson noted that Ms. Nouri completed the placeholder clemency application, saying it is evidence she could do a more thorough application.
But Judge Moss said he saw flaws in the placeholder documents.
“It didn’t read as if it was written by someone who was terribly focused,” the judge said. “It wasn’t much of a document.”
Montgomery would be the first woman executed in the United States in almost 70 years. She is set to die by lethal injection at the federal penitentiary in Terre Haute, Indiana.
Montgomery was convicted of murdering Bobbie Jo Stinnett in Skidmore, Missouri, in 2004. Stinnett was eight months pregnant, and Montgomery cut her unborn child from her womb with a kitchen knife. The child was missing but was found later and survived.
Attorneys and supporters for Montgomery have argued that she suffers from several mental disorders that emerged from a lifetime of abuse. They say she was sexually trafficked by her stepfather, who repeatedly allowed friends to gang-rape her, and later was sexually trafficked to men by her mother.
Attorneys have also said that Montgomery was born with brain damage because her mother abused alcohol while pregnant with her.