TERRE HAUTE, Ind. (WTHI) - A lawyer for the only woman on federal death row is sounding alarms about executions during a pandemic. Meanwhile, the Department of Justice is appealing a judge's decision to halt the execution of Lisa Montgomery.
Montgomery was sentenced to death in 2004 for killing a pregnant woman and cutting out her baby. The baby survived.
Montgomery's execution was scheduled for December 8th but a judge granted a stay of execution, effective through the end of the year after members of Montgomery’s legal team became sick with COVID-19. The Federal Bureau of Prisons rescheduled the execution for January 12th. Last week, a judge ruled the government acted unlawfully when it rescheduled the execution while the stay was still in place. The government appealed that ruling Monday wishing to proceed with the execution on January 12th despite the order calling it illegal.
Supervisory Assistant Federal Public Defender Kelley Henry has represented Lisa Montgomery since 2012.
Henry says, "There won't be a result in the appeal because they're not asking for an expedited appeal. They're asking to execute her despite the fact that there will be an order saying that the execution is illegal."
Montgomery's legal team has a brief due to the Court of Appeals in the District of Columbia Wednesday afternoon. If the court denies the BOP request the execution may not be rescheduled until President Donald Trump leaves office.
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Henry says Montgomery’s execution date is the fastest to be set in modern history. Her case was only final after a first round of appeal this past August.
"I've been doing this work for 30 years. I've never had a client with an execution date just 12 years past conviction. That's, really, in the world of death penalty litigation, that's like a rocket docket."
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"It is frankly irresponsible to attempt to carry out these executions during a pandemic."
Henry was one of Montgomery’s legal team members to get sick with COVID-19. She says she is still dealing with the effects of the virus.
Coronavirus has also made it more difficult for Henry to speak with her client who is being housed at a federal facility in Fort Worth, Texas. Montgomery was tested for COVID-19 after her lawyers and family got sick but has not been tested since, even as Henry says there's been an outbreak inside her facility.
Back in Terre Haute, which is home to federal death row, Henry calls executions "super spreader" events. She cites the Orlando Hall execution as an example. A spiritual advisor and 8 members of the execution team got sick with COVID-19 as a result of that execution.
"We also know that members of the execution team refuse to wear masks inside the execution chamber so you're potentially putting at risk the lives of the 125 people that the prison says that are involved in these executions and every single person they come into contact with."
Henry says she would like Montgomery to be tested for COVID-19 again. She says she is also concerned about the virus and the use of pentobarbital. She says the use of the drug on someone with lungs damaged by COVID-19 could feel like a tortuous chemical waterboarding.