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Trump DOJ Can Execute Woman on Jan. 12, Appeals Court Says (1)

Jan. 1, 2021, 7:52 PM; Updated: Jan. 1, 2021, 8:39 PM

The Trump administration can carry out the first federal execution of a woman in nearly 70 years on Jan. 12, a Washington appeals court panel ruled.

Friday’s order overturns a trial judge’s order that vacated the Jan. 12 date because the government set it while a prior stay was in place. The trial judge set the stay until Dec. 31 so that Lisa Montgomery’s lawyers, who contracted Covid-19 while working on her case, could have more time to work on her clemency petition.

If left undisturbed on further appeal, the U.S. Court of Appeals for the D.C. Circuit’s order allows the outgoing administration to continue its streak of executions through the week before the inauguration of President-elect Joe Biden, who ran on an anti-death penalty platform. Trump’s DOJ began federal executions in July after a 17-year break, and has been conducting the first lame-duck executions since the late nineteenth century.

The D.C. Circuit order against Montgomery comes from a three-judge panel that includes Trump appointees Gregory Katsas and Justin Walker. Judge Karen Henderson, a George H. W. Bush appointee, was also on the panel. The panel overturned a Dec. 24 order from district judge Randolph Moss, an Obama appointee.

It wasn’t a close call, according to the three judges. “The merits of the parties’ positions are so clear as to warrant summary action,” the order said.

Further Appeals

Montgomery will ask the full D.C. Circuit to reconsider the panel’s order, one of her lawyers, Meaghan VerGow, said in a statement Friday. Any rehearing petition is due by 5:00 p.m. Saturday, the panel’s order said.

Even if the full appeals court reverses the panel, Montgomery could then have to contend with a Supreme Court whose majority has consistently sided with the government regarding federal executions since July.

“Given everything we know about Lisa Montgomery’s mental illness, her lifetime of horrific torture and trauma, and the many people in positions of authority who could have intervened to save her but never did, there can be no principled reason to carry out her execution,” VerGow said in Friday’s statement. “The government should stop its relentless efforts to end her life, and President Trump should commute her sentence to life without possibility of release.”

There’s no sign Trump intends to grant clemency to Montgomery, who was sentenced to death for murdering Bobbie Jo Stinnett. She cut Stinnett’s baby from her womb and strangled Stinnett to death. Montgomery put the baby in a car seat she had hidden in her trunk, lied to her husband that she had given birth while shopping, and pretended the baby was her own, the Justice Department recounted in its Dec. 29 motion to vacate the trial court ruling.

Montgomery’s lawyers argued in opposition to DOJ’s emergency motion that “the only ‘emergency’ purportedly justifying this extraordinary request is” the government’s “apparent wish to end Mrs. Montgomery’s life on the arbitrary date they have selected, and not a minute later.”

Two other executions are scheduled for Trump’s last full week in office. Both Corey Johnson and Dustin Higgs tested positive for Covid-19 in December. They’re arguing in pending court filings in Washington that killing them in that condition would violate the Eighth Amendment’s ban on cruel and unusual punishment. A separate appeal in Higgs’ case from Maryland federal court is pending in the U.S. Court of Appeals for the Fourth Circuit.

The case is Montgomery v. Rosen, D.C. Cir., No. 20-05379.

(Updates with additional information from Montgomery's attorney.)

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

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com

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