Lisa Montgomery — whose case WitnessLA has written about twice before — was scheduled to be executed tomorrow, Tuesday, January 12, at 6 p.m. in the U.S. Penitentiary in Terre Haute, Indiana. Montgomery’s planned execution, as part of President Donald Trump’s 13-person federal execution spree, which he and the DOJ hopes to complete before January 20.
Now, in a remarkable development, U.S. District Court Judge James Patrick Hanlon of the Southern District of Indiana, has granted Montgomery a stay.
By Tuesday morning, Montgomery’s legal situation was complicated by two additional appeals, meaning her case will likely be decided by the U.S. Supreme Court.
Here’s the deal:
Lisa Montgomery’s attorneys recently filed a petition for a Writ of Habeas Corpus in the hope of persuading the court, in the person of Judge Hanlon, that she is “incompetent to be executed” due to a 1986 precedent known as Ford v. Wainwright, therefore her execution should be stayed.
(Ford v. Wainwright prohibits the execution of a prisoner whose mental illness prevents him or her from ‘rationally understanding’ why the State seeks to impose that punishment.)
Given the fact that, thus far, efforts to stop any of the first ten of the president’s executions set since July 2020, have proved unsuccessful, the petition for the writ for Montgomery — who is one of three still on the killing schedule — seemed like a Hail Mary pass.
Then, astonishingly, late on Monday, January 11, the judge granted the appeal.
Montgomery and her lawyers didn’t contest the validity of her conviction, or of the sentence imposed — although many familiar with her case have written about why they oppose the latter.
“Rather, the sole issue presented,” wrote Judge Hanlon in his ruling, “is whether the government may lawfully execute Ms. Montgomery in her current mental state.”
Specifically Montgomery’s counsel told the court that executing their client would be unconstitutional because her current mental condition makes her unable to understand why the government seeks to execute her. (It’s far more complicated, but this is the bottom line.)
They asked the court to stay the execution, and then hold a hearing in order to make findings about Montgomery’s current mental condition based on “a fully developed record.”
Horror producing horror
Those who have read WLA’s previous reporting on the case know that the crime of which Lisa Montgomery was convicted horrific.
A week before Christmas in 2004, Montgomery conned her way into the home of a young pregnant mother named Bobbie Jo Stinnett in the northwest Missouri town of Skidmore. Once inside, she attacked and strangled Stinnett to death and kidnapped her baby, cutting the 8-month unborn child out of her victim’s body with a knife. The baby was a little girl and she lived. When Montgomery got home, she attempted to pass off the infant as her own.
Again, those pleading for clemency for Montgomery, don’t argue her guilt. Instead, they point to her childhood that was abusive in the extreme, and her resulting deteriorated mental and emotional health, are all glaring mitigating factors that her legal representation at the time of her trial inexplicably failed to present to the jury at sentencing, and reportedly seemed not to fully comprehend themselves.
From the time she was a toddler, into her adulthood, Montgomery experienced relentless physical, sexual, and emotional abuse at the hands of her mother, her step father, and a string of other men — according to her cousin, her half sister, her half brother, and others, including her stepfather’s employer.
When Montgomery’s mother divorced her dad, then remarried, she reportedly allowed her new husband to rape the younger girl repeatedly, putting her in a special room on the family property for that purpose. The new stepfather also reportedly urged his cronies to gang rape the teenager on multiple occasions, beating her during the rapes, urinating on her afterward. The horrors, which included being sex-trafficked for cash by her mother as she got older, continued into adulthood.
According to her present lawyers, as a consequence of the abuse, Montgomery has been diagnosed with bipolar disorder, complex post-traumatic stress disorder, temporal lobe epilepsy, dissociative disorder, and general psychosis. She also reportedly regularly dissociates and hallucinates.
Furthermore, M.R.I. scans of Montgomery’s brain, reportedly show a number of abnormalities indicating brain damage, and various forms of brain dysfunction.
A fair hearing
In explaining his ruling, Judge Hanlon wrote that Montgomery’s lawyers had argued in their petition that executing Ms. Montgomery without first providing the “fair hearing” required by Ford v. Wainwright would violate her right to due process under the Fifth Amendment.
“To succeed on the Fifth Amendment claim,” wrote Hanlon, Montgomery’s counsel had to make a “substantial threshold showing of insanity.'”
Montgomery’s counsel, he continued, did in fact make the “required substantial threshold showing and, in doing so, demonstrated a strong likelihood on the Fifth Amendment claim.”
Hanlon also appeared to be persuaded by the declarations submitted by three medical experts regarding Montgomery’s severely deteriorated mental and emotional health. The experts at least hit the required bar needed for a “preliminary showing that Ms. Montgomery’s current mental state would bar her execution,” wrote the judge.
The DOJ has, of course, has presented its own “contrary evidence,” including transcripts of Montgomery’s recent phone conversations and reports from BOP staff observations.
“While this evidence,” wrote Judge Hanlon, “certainly shows that Ms. Montgomery understands that she is supposed to be executed soon, it does not demonstrate that she rationally understands the ‘meaning and purpose of the punishment.'”
That last part is the critical distinction.
There’s more to the ruling, which you can read for yourself here, but the bottom line is that Lisa Montgomery’s motion to stay her execution in order to allow the court to conduct “a hearing to determine Ms. Montgomery’s competence to be executed,” was granted in time to stop her execution tomorrow.
The Court, wrote Judge Hanlon, “will set a time and date for the hearing in a separate order in due course.”
Montgomery’s advocates hope, of course, that the aforementioned “time and date” will be set after June 20, 2021.
Her advocates also hope that the U.S. Supreme Court doesn’t decide to reverse Hanlon’s stay, as the Trump administration would like them to do, as of Tuesday morning when acting Solicitor General Jeffrey B. Wall, urged the Supremes to “immediately set aside this unwarranted obstacle to carrying out a lawful death sentence.”
Added to everything, USP Terre Haute, the prison where Montgomery and two others, are scheduled to die, is experiencing a large outbreak of COVID-19 with 657 residents and 70 staff members testing positive for the virus between Dec. 2, 2020, and Jan. 7 2021.
Among those who have reportedly contracted COVID-19 are Cory Johnson and Dustin Higgs, the other two people scheduled to be put to death by the federal government this week.
And, just in case you’ve forgotten. there have been only three federal executions in the past 30 years, since the death penalty was reinstated in 1988. And, until President Trump fired up the capital punishment engine this past summer, there have been zero executions since 2003.
Bottom line….stay tuned.