Last week, while Donald Trump holed up with his shrinking circle of advisors to plan nearly 150 pardons and commutations, including many for his friends and coconspirators, his Department of Justice concluded a string of 13 federal executions — breaking a 17-year hiatus of the federal death penalty. In just six months, in what Supreme Court Justice Sonia Sotomayor called an “expedited spree of executions,” the government put to death more than three times as many people as it had in the previous 60 years.
In the early hours of Wednesday, January 13th, Lisa Montgomery became the 11th person to be executed in that spree. She was the only woman on death row, and the first woman to be put to death since 1953.
Her crime was gruesome. In 2004, Montgomery, a mother of four, strangled Bobbie Jo Stinnett, a pregnant 24-year-old, cut her baby out of her stomach, and left her to bleed to death. She admitted to her crimes when police found her with the infant the following day, trying to pass it off as her own.
But her initial trial — the one that resulted in her death sentence — did not give the jury a full picture of the life that Montgomery endured before that crime. Her lawyer was Frederick Duchardt, an attorney who, according to the Federal Capital Habeas Project, has the dubious distinction of being the only trial lawyer to have had multiple clients executed on federal death row. He only visited her in jail three times before constructing a thinly-supported argument that she suffered from pseudocyesis, a phantom pregnancy, and attempted to make an insanity plea to the court — a nearly impossible bar to clear, according to Kelley Henry, a public defender who’s worked Montgomery’s case since 2012. “You will not convince a jury to find someone not guilty by reason of insanity in a capital case,” says Henry, who has specialized in capital punishment cases for 20 years. “The jury is just not going to buy it.” And they didn’t. The jury deliberated for less than five hours before finding her guilty, and she was sentenced to death. (Duchardt has previously denied that he made any mistakes in the case.)
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It wasn’t until after her sentencing that a new legal team began to uncover the sheer horror that led to that moment in Montgomery’s life — details that likely would have kept her from ever facing the death penalty. In a capital case, the American Bar Association dictates that a defense attorney “must at minimum” work with a “mitigation specialist”: an investigator that digs into the defendant’s background to reveal trauma, mental illness, and anything that can help the jury understand the defendant as a full human. (Despite the ABA’s guidelines, Duchardt did not work with one.) In the course of hundreds of interviews, her new team uncovered decades of abuse, rape, and outright torture.
According to her mother’s interviews with her new legal team, Montgomery’s first words were, “Don’t spank me, it hurts.” When Montgomery’s father left and they moved in with her stepfather, he built a separate structure in the back of their home where, for years, he and his friends would rape Mongomery as a young teenager, and urinate on her afterward. Her mother forced her to “pay the bills” by prostituting her to repairmen that worked on their house. And when she married her stepbrother at age 18, he continued to rape and abuse her, sometimes with bottles, and sometimes on video. Her legal team found that she was beaten so badly that she had a traumatic brain injury. (Both her mother and stepfather have since passed away, without ever acknowledging the extent of their abuse, despite numerous family members’ accounts.)
She was a victim of sex trafficking and abuse, with bipolar disorder, temporal lobe epilepsy, complex post-traumatic stress disorder, dissociative disorder, psychosis, and traumatic brain injury — all information that would have mitigated her sentence, had the jury in her 2007 trial heard it. Her legal team fought for eight years for the government to turn her death penalty into a life sentence, but she was never granted an appeal for her trial.
When the Trump administration reinstated the federal death penalty last year, her team argued that Montgomery’s mental illness made it impossible for her to comprehend her sentencing, and asked Trump for clemency. But on Tuesday, January 12th, the government fought through the night to overturn appeal after appeal, until the Supreme Court allowed for her execution. When she was brought to the gurney, the Associated Press described her as “bewildered.” Her lawyers say that’s because she was experiencing a dissociative episode from the stress of being taken to the new facility. Although many have argued that it’s an inmate’s first amendment right to have a spiritual advisor in the room during an execution, the government didn’t allow Montgomery’s in with her — “he was going to sing her ‘Jesus Loves Me’ while the chemicals flowed,” her lawyer said. She was pronounced dead at 1:31 a.m.
We talked to her lawyer, Kelley Henry, the day after she was executed. She reflected on the case she’d worked on for eight years, the misogyny and stigma that permeated Montgomery’s life, and the woman that she’d gotten to know. “I had a family reunion at a park in Topeka, Kansas,” she recalls. “Lisa had a reunion at that same park, only she got raped in the bathroom.” Losing a client is always mournful for Kelley, especially Montgomery. “She touched me,” she says. “She loved Little House on the Prairie. She was smart. She was somebody who never would have been there, but for her mental illness.”
Lisa Montgomery’s history of abuse, trauma, and mental illness seem to be a defining part of her life. How did it never play a role in her sentencing?
[In her original trial] the government’s experts actually described Lisa as being a willing participant in the rapes by her stepfather. That’s the kind of misogyny that just ran through this case. I mean, talk about victim blaming. [The prosecutor] would have been the one to put Lisa on [the stand] as a victim if anyone ever actually prosecuted these people, right? And to turn around and say, “Well, nobody knows. She didn’t tell anybody. Where are the records?” Child rape happens in private. There aren’t witnesses.
In 2016, when we discovered all of this and had our hearing, I’m thinking, the government’s supposed to be against human trafficking. And they just didn’t care. She was a sex trafficking victim. This is the outcome of what happens when you don’t protect little girls. This is why women don’t disclose.
But she did disclose. Her cousin David Kidwell Sr., a deputy sheriff, told you in a sworn statement that she confided in him as a teenager, telling him that her stepfather and his friends raped her, beat her, and urinated on her afterward. Why was that not a part of her trial?
They never asked him. While we’re doing our investigation for the hearing, we had a list of like 450 people, and he was on my list. My co-counsel said, “Kelley, you haven’t talked to Kidwell yet.” And I said, “Yeah, but his testimony [from the original trial] was weak. He said that [her mother] Judy said that Lisa tried to steal her husband. He didn’t have any good information.” And we interviewed him at a truck stop in Topeka, Kansas. And I mean, my jaw dropped to the floor. I couldn’t believe what he told us that Lisa had told him when she was 14 years old about these gang rapes. And he was on the witness stand! And in his declaration, he told me, “It took me longer to take the oath than to give my testimony. I couldn’t believe they didn’t ask me any of these questions.” He thought they were gonna ask, and he was ready to get to give that testimony. They never asked him.
Why didn’t Lisa’s lawyer learn about this abuse from her?
Lisa couldn’t access that information. We had a really good relationship with our client. And she did get so much better. Having that relationship with us, I think, mattered a lot in her life. And for seven solid years, she had a meaningful life. She had a relationship with people and was able to be safe, for the first time. But even with that relationship, she could not tell us about what happened. It was only when we talked to Kidwell that we knew. And then we brought in our trauma expert to come with us to give her a safe space. And we did these grounding exercises together to help Lisa through this. I said to Lisa, “We talked to your cousin David, and he told us.” And she said, “I didn’t lie to him. And then the next thing she said was, “The worst part was my mom.” And then just went into how her mother would traffic her.
In your appeals on behalf of Montgomery, you accused her former lawyer of “ineffective assistance of counsel,” which you argue was in part because he failed to uncover the scope of her traumatic history. Were there particular challenges in trying her case, that he wasn’t able to overcome?
Lisa was incredibly mentally ill. I represent a lot of people who are mentally ill, and she had a history that was particularly difficult to get at. The way her mental illness presents itself is difficult to detect until you do the investigation. You can sit down with somebody who is incredibly dissociative, but that doesn’t always that doesn’t mean they’re not responsive, right? So Lisa would give a version of her life that sounded like she was just a really great mother, but I think you go look at it, you know, this woman is completely out of touch with reality.
Her lawyer’s initial plan was to argue that her brother had committed the murder, and given her the baby. But her brother had an alibi. How was the case misdirected so badly?
Lisa had described feeling as if another person was with her. That was a symptom. She was describing something called depersonalization — a symptom of trauma, and you feel like you’re outside yourself. She was giving them a symptom. And they decided that that symptom was truth. And then that was the mistake they just kept making with Lisa.
Statistically, being a woman makes it significantly less likely that you’ll be sentenced to death. Only two percent of death row inmates are women, and only 54 have been executed since 1900. But in your investigation, you pointed out that the prosecution used Montgomery’s womanhood against her — using sexist tropes, like pointing out that she had a filthy home, and didn’t cook or clean. How do you think that influenced the case?
I think it definitely added to just like, painting this picture of her to the jury, like she’s worthless, right? Because what is a woman supposed to be? She’s supposed to be a good mother. So they really even stripped her womanhood from her.
But her lawyers failed to understand that it wasn’t just a dirty home. I mean, they had a room that was a “Trash Room.” It was literally trash. Literally. And how do people not know that that’s mental illness? She had lice for five years and didn’t notice it. That’s mental illness.
And, you know, she wasn’t a good mother. It’s just another gift that he gave to the government to say, “She’s a good loving mother.” A trip to the Alamo was getting the kids up in the middle of the night, putting them in the van, putting a diaper on their pet goat and putting it in the van and driving like a crazy person all night — because she was in a manic state — to go to the Alamo. That’s not a lovely family road trip. That was mania. And she was not good to her children. She would become so overcome that she couldn’t brush her daughter’s hair. She would try to brush her hair. She couldn’t do it. So then she would start to hit her daughter over the head with a hairbrush.
Of course she wasn’t a good mother. She was crazy. She wanted to be — she desperately wanted to be. And in these last seven years finally was able to have a relationship with her children.
You’ve represented defendants in capital cases for decades, but the vast majority have been men. Are there unique challenges to representing a woman on death row?
Representing a woman is more challenging than I would have ever thought it would be. I’ve represented two women: Gaile Owens and Lisa Montgomery. And Gaile, we received clemency for her case. She died last Thanksgiving of 2019, but she died a free woman. [Ed note: Gaile Owens was convicted of hiring a man to kill her husband in 1986.]
These women have serious trauma histories. And they have shame and humiliation. For Gail, she would rather have been executed than have had her boys know what their father did to her.
For Lisa, we had over 100 women’s advocates that supported us, but you know, people say believe the victim. And they don’t believe her. Those are just words unless you’re willing to actually accept it.
In 2002, the Supreme Court determined in Aktins v. Virginia that it was a violation of the Eighth Amendment — which protects against cruel and unusual punishment — to execute a person that is mentally disabled, and stated that intellectual disabilities would “jeopardize the reliability and fairness” of a death penalty trial. You presented MRI scans that showed Montgomery’s brain damage, and PET scans that showed brain dysfunction. Should that have protected her from the death penalty?
She’s not intellectually disabled. She does have brain damage, but she’s not intellectually disabled, so Lisa did not check that box. But all of the concerns in the court in the Atkins case in 2002, are equally applicable to people who have a severe mental illness like Lisa. They talk about how they’re less able to defend themselves, and that jurors will miss apprehend their effect. Lisa was doped up out of her mind in the trial, because the CCA was treating her, they realized she was mentally ill.
And mental illness doesn’t disqualify you from facing the death penalty?
It does not. There are many of us in the bar who are trying to push that argument, to get the court to recognize that, and many legislatures are now considering it. Ohio just passed a bill that the governor signed, saying that people with severe mental illness are ineligible for execution. And they made it retroactive. And they defined it with certain specific disorders like bipolar disorder, schizophrenia, and post-traumatic stress disorder.
[In our petition for clemency,] we were supported by prosecutors who all said that this would not be the sort of case where they would seek the death penalty, because it would be so apparent — just from the crime — that the person was mentally ill and would have a trauma history.
Donald Trump has been a vocal proponent of the death penalty since the late Eighties, when he took out a full-page ad in the New York Times to demand the death penalty for the now-exonerated Central Park Five. What was it like to ask him for clemency for Montgomery?
Having to ask for clemency for Donald Trump, for God’s sake. But we were asking him to make a statement here. Tell girls that they don’t have to feel ashamed. Tell them their trauma matters. You can do that. It’ll be a great way to go out of office — be a champion for women. Do something right.
I can’t tell you how many people ask me questions, wanting me to say something provocative about Trump. How do you do that? This man has your client’s life in his hands, and with the stroke of a pen, he can save her life. And wouldn’t that be a great way to change the story that’s going out about you? But he doesn’t even have the decency to tell you that he’s aware of what you’ve filed.
Lisa had made a calendar counting down to January 20th, when President-Elect Joe Biden will be inaugurated, because she knew that he was committed to ending the federal death penalty. Do you believe that another administration would have granted her clemency?
Absolutely. Over and over, I just kept thinking, “Eight days.” And I believe that President Biden will keep his political promise to work to abolish the federal death penalty. Representative Ayanna Presley and Senator Dick Durbin, have already announced their intent to introduce the bill. I don’t know how quickly that will happen. But we’ve moved to a place in this country from if a presidential candidate said he was opposed to the death penalty, he didn’t have a shot at winning, to a place where it’s politically possible to not only say I’m against the death penalty, but I’m going to work to actually abolish it at the federal level. I take comfort in that.
When the Supreme Court allowed Dustin Higgs’ execution on January 15th — the final execution of the Trump administration — Justice Sonia Sotomayor wrote a scathing dissent, calling the last six months an “expedited spree of executions” and saying that the Court had “consistently rejected inmates’ credible claims of relief.” The Court overturned a stay that would have delayed Montgomery’s execution in a 6-3 vote: Sotomayor, Justice Kagan and Justice Breyer all said they would have upheld the stay.
Elections have consequences. We had 12 judges in the last two months side with Lisa. We needed two more judges on the US Supreme Court to vote our way. And we couldn’t get those two other votes. I mean, we had three stays of execution in 48 hours and each one of them was taken away. We had a Trump-appointed judge agree that Lisa’s made a strong showing that she was too mentally ill to face execution. And that got taken away. And three justices would have given her stay for that. If Ginsberg were alive, and if Anthony Kennedy were still on the court, Lisa would be alive.
On a day like today — hours after a client is put to death — how do you keep coming back to work?
The Constitution is my Bible. And I believe in it, and the honor of fighting for my clients constitutional rights is something I never take for granted. That they trust me and my team with their trauma, that they give me their stories, and they say, I will let you hold my truth, and I will trust you with my truth—that’s such a bittersweet honor. You know, and I don’t have a lot of skills in life. I’m a mediocre cook, I don’t do art. But I can advocate for my clients.
But I also feel like when we can have understanding of what causes people to get in these situations, if we’re willing to look at it, really look at it, instead of just say, “You’re a monster, and I’m going to kill you,” we can stop it from happening again. There are ways in which telling my clients stories — if people want to listen — can provide clues and information about how to stop this from happening again. Food insecurity is a criminal justice issue. Education is a criminal justice issue. Treating mental illness as a criminal justice issue. Because that’s the reason that crimes occur. If we could just be kind to one another, and have understanding, and that Christian grace that we’re supposed to have in this country? There’s so much to be learned. So for all of those and many other reasons, I love my job, and I’m not going to quit.
It’s frustrating. It’s frustrating to bang your head up against the wall. At the same time, the fact that Lisa got this time on Earth, with her family, that she got to finally have a relationship with her children. And that she got to see her grandchild, in person for the first time, while she was on suicide watch with this craziness, that we got to give her that gift is — I can’t even put words to how much that means to me. And that is what I will hold on to, to be able to say, “None of us are the worst things that we’ve ever done. Even when those worst things are incomprehensible.”