Full USCA-DC Rejects Rehearing For Notorious Murderer

On New Year’s Day, a panel of the U.S. Court of Appeals for the D.C. Circuit vacated the stay of execution for notorious murderer Lisa Montgomery. Today, the full court turned down her rehearing petition. Matthew Schwartz had this story for NPR Saturday:

Lisa Marie Montgomery said she was interested in purchasing a puppy. But once the Kansas woman arrived at Bobbie Jo Stinnett’s Missouri home in 2004, she attacked the pregnant 23-year-old, using a rope to strangle her until she lost consciousness.

With a kitchen knife, Montgomery cut the 8-month-old fetus out of Stinnett’s womb, taking it to raise as her own. Stinnett was found later by her mother, dead in a pool of blood.

Men are “disproportionately represented” on death row for the obvious and valid reason that fewer women commit murder generally and very few commit the kinds of murders that deserve the death penalty. Lisa Montgomery is one of the few, and the only woman presently on federal death row.

Montgomery had originally been scheduled for execution on December 8. On November 19, the district judge issued a stay to December 31 on the dubious grounds that her lawyers had contracted coronavirus and needed more time to prepare her clemency petition. She is represented by lawyers with O’Melveny & Myers, one of the nation’s major law firms. Surely other lawyers in the firm could prepare the petition while consulting with the original lawyers by phone and online.

Rather than appeal, the government just reset the execution for January 12. The regulation for setting execution dates, 28 C.F.R. § 26.3(a)(1), provides:

On a date and at a time designated by the Director of the Federal Bureau of Prisons, which date shall be no sooner than 60 days from the entry of the judgment of death. If the date designated for execution passes by reason of a stay of execution, then a new date shall be designated promptly by the Director of the Federal Bureau of Prisons when the stay is lifted …

The district judge then engaged in a strained reading of the regulation to say that the government could not take the action of resetting the date until after the stay had actually expired by its terms. The Court of Appeals panel was not impressed.

The merits of the parties’ positions are so clear as to warrant summary
action…. The governing regulation, 28 C.F.R. § 26.3(a)(1), did not prohibit the Director from making that designation on November 23 because, at that time, the “date designated for execution” had not yet “passe[d].” 28 C.F.R. § 26.3(a)(1).

The panel also set the rehearing petition on a fast track, with the petition due the next day, Saturday. The government filed its response yesterday, Monday. Today the full court denied the petition without comment. No dissent is noted. Judges Garland and Pillard did participate.

On the underlying justice of the matter, Montgomery’s attorneys resort to the nearly ubiquitous “abuse excuse.” They told NPR that the crime was “the direct result of her mental illness and trauma.” Direct? I very much doubt that. Unless Montgomery is insane, she has free will. She chose to do what she did. Past abuse by others is always deplorable and often tragic, but it rarely, if ever, has any direct causal connection to a deliberate decision to commit a horrible crime against someone else.

The case is Montgomery v. Rosen, No. 20-5379.