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Death Penalty Lawyers Left in Dark by Unexplained SCOTUS Orders

Jan. 22, 2021, 11:05 PM

The Supreme Court’s unexplained orders siding with the outgoing Trump administration and letting Lisa Montgomery’s execution go forward Jan. 13 were “really disheartening,” her lawyer said.

Kelley Henry had represented the first woman federally executed since 1953 for years, but was sidelined when she and her co-counsel contracted Covid-19 after visiting Montgomery after plans for her execution were announced in October.

Montgomery’s legal team secured stays from multiple courts around the country, but around midnight Jan. 12, a divided Supreme Court granted the administration’s requests to vacate them. Montgomery was executed within hours.

“To have it feel like your work is meaningless is very disheartening when that has been your life’s profession,” the veteran lawyer said during an interview with Bloomberg Law’s “Cases and Controversies” podcast.

“There has definitely been a shift at the court, no doubt,” she said of the court that now has six Republican and three Democratic appointees. We’ll be living with that shift “probably for the rest of my legal career,” the chief of the federal public defender’s office capital habeas unit in Nashville said.

Montgomery’s execution was one of 13 carried out by the Justice Department since resuming them in July after 17 years. The death by lethal injection was part of what Justice Sonia Sotomayor called an “expedited spree” in her dissent following the last execution, that of Dustin Higgs on Jan. 15. Higgs’ execution also went forward after the Supreme Court majority reversed a stay—and reversed a district court before the appeals court ruled—without explanation.

Montgomery was sentenced to death for fatally strangling a pregnant woman, Bobbie Jo Stinnett. Montgomery cut open her body and kidnapped her baby, who survived. Montgomery had suffered her own trauma, including being sexually abused at a young age, Henry said.

Covid Hits Counsel

Henry said the Covid-19 diagnosis following her visit to Montgomery at a Texas facility “was devastating”

She first lost her sense of smell and thought she’d be O.K. But within two days, she said, “the fatigue and brain fog was just overwhelming.”

Henry said they were fortunate to have assistance from lawyers who jumped in to help, but she said her “ability to do the things that I would normally do when a client was under warrant was completely compromised.” Other lawyers “didn’t have the historical knowledge of the case and they can’t learn 10 terabytes of data in two-months’ time,” she said.

Henry noted that Montgomery had a calendar that counted down to Jan. 20, the day President Joe Biden, who has vowed to end the death penalty, was inaugurated.

“We knew we just had to get her eight more days,” Henry said. “‘How are we gonna get her eight more days?’ And to not be able to figure out how to do that is heartbreaking.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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