Death row woman's clemency plea in jeopardy as lawyers contract Covid-19

Lawyers acting for the first female inmate set to be executed by the US government in almost 70 years have fallen sick with coronavirus following a visit to see her in federal prison, putting her hopes for clemency in jeopardy.

Lisa Montgomery is set to be put to death on 8 December for murdering a Missouri woman in 2004 and kidnapping her unborn child. William Barr, the US attorney general, has designated her the eighth prisoner to be judicially killed since he made the controversial decision to restart federal executions in July.

Related: Lisa Montgomery to be first female federal inmate executed in 67 years

Montgomery’s last hope of staying alive was to petition for clemency – which in capital cases is seen as the final remedy to prevent miscarriages of justice where all other appeals have been exhausted. But her prospects of a reprieve plummeted recently when both the federal public defenders who have represented her since her conviction fell sick with Covid-19.

Kelley Henry and Amy Harwell visited Montgomery at a federal medical center in Carswell, Texas, as part of the process of preparing her clemency appeal. The lawyers traveled to Carswell on 19 and 26 October and 2 November. They developed symptoms of the illness days later.

But a federal judge signaled reluctance on Monday to grant Montgomery, the only woman on federal death row, extra time.

In a hearing in US district court for the District of Columbia, Judge Randolph Moss questioned why lawyers for the convicted woman had not completed a draft of the clemency petition sooner, saying he believed Montgomery could still authorize other attorneys to proceed on her behalf.

In a previous court filing, Montgomery’s defense team excoriate Barr for pressing ahead with federal executions in the middle of a public health emergency that has struck with especially fearsome force in US prisons. Henry and Harwell only fell sick, the memo states, because Barr “recklessly scheduled Mrs Montgomery’s execution in the middle of the Covid-19 pandemic”.

In addition, mental health experts familiar with Montgomery’s case are unable to assess her mental state “and therefore cannot participate in the clemency process”. The lawyers have asked for an injunction postponing the execution until a thorough clemency appeal can be prepared.

Montgomery was sentenced to death in 2007, for murdering Bobby Jo Stinnett and extracting her baby from the womb. The only woman among 55 inmates on federal death row, she would become the first female prisoner to be executed by the US government since Bonny Brown Heady in 1953.

Any clemency petition is likely to focus on the horrifying childhood to which Montgomery was subjected. According to court documents, she was born with brain damage related to her mother’s alcohol intake during pregnancy and went on to suffer incest, gang rape and child sex trafficking, as well as physical abuse and neglect.

Montgomery’s alcoholic stepfather began abusing her when she was 11, keeping her locked up in isolation and raping her on a weekly basis. The shocking litany of abuses has left her with severe mental health issues including psychosis and hallucinations.

When she learned on 16 October that Barr had ordered her execution, Montgomery became so distressed that she was placed on suicide watch. She has been under constant surveillance in solitary confinement ever since. While on federal death row at FMC Carswell she is being given anti-psychotic, anti-epileptic and anti-depressant drugs.

The pending execution of a female survivor of sexual abuse and domestic violence with severe mental challenges has prompted an outpouring of revulsion around the country and the world. A group of 41 current and former federal and state prosecutors wrote to Donald Trump last week, to implore the president to call off the lethal injection killing.

“Lisa’s experiences as a victim of horrific sexual violence, physical abuse, and being trafficked as a child do not excuse her crime,” they wrote. “In this case, mental health professionals have concluded that the sexual violence and cruelty she suffered was directly related to the crime she committed.”

A coalition of more than 800 organisations, scholars and survivors campaigning against all forms of violence against women have also written to Trump. They write: “Lisa committed her terrible crime – the seriousness of which we do not minimise – in the wake of a lifetime of victimisation and mental illness.

“We urge you to have mercy and to commute her death sentence to life without the possibility of parole.”

On Monday, however, the judge was skeptical.

“I would think that any vigorous and experienced counsel … would begin on day one and would have done a great deal for early November to have at least started the process of putting something together,” Moss said.

Sandra Babcock, an attorney for Montgomery, responded that lead clemency attorneys Henry and Harwell were too sick to meet the Monday night deadline to file Montgomery’s petition.

“What I can tell you is that the amount of time was very short, given all that they had to do,” said Babcock, telling Moss later in the hearing that clemency arguments “can’t be put together by any old person”.

The Associated Press contributed reporting.