It was the day before Christmas, and Kelley Henry hadn’t bought a single present. She didn’t have a tree. When reached by phone, she was preparing a clemency petition for her client Lisa Montgomery, imploring outgoing President Donald Trump to spare the life of the only woman on federal death row.
Normally, legal writing comes easily for Henry, who has spent 30 years representing people condemned to die. When she gets into hyperfocused mode, she can write a 30-page document in a day, she said. That was before she got sick. In November, Henry tested positive for COVID-19 following visits with Montgomery inside a Texas prison. Even now, two months later, she is plagued by brain fog and fatigue.
She’d spent the morning crying, she admitted, angry and sad about Montgomery’s case. “I haven’t had a Christmas in 14 years that didn’t involve some sort of threat of somebody being executed. I signed up for that,” Henry said. “I didn’t sign up for not being able to fight for my client. ... To not be able to be at the top level of my practice right now, for a case that I have put my heart and soul into, is devastating.”
Montgomery is one of three people the federal administration plans to execute in Trump’s last week in office, a final gasp of cruelty. The other two individuals, Corey Johnson and Dustin Higgs, are both recovering from COVID-19.
For Henry, the fight to save Montgomery’s life is personal.
She has spent eight years documenting the horrific abuse and violence that Montgomery experienced as a child, crisscrossing the country interviewing family members, neighbors and witnesses. Henry doesn’t like to call it abuse; torture is more apt for the intensity of the physical and sexual violence perpetrated by the people tasked with caring for Montgomery, she said.
The accounts are difficult to read. According to sworn statements by family and others, Montgomery’s mother beat her regularly and withheld all forms of affection. Her stepfather began molesting her when she was 11 and soon started raping her in a room he built specifically to isolate her from the rest of the family. As a teen, her parents trafficked her out to neighborhood men in exchange for services around the house. She was gang-raped in every orifice and urinated on, she confided to a cousin at the time, begging him not to tell anyone because she feared her stepfather would kill her. At a time when children need stability and support, she was neglected and violated.
Now Henry tried to put all this into words for Trump.
“Had just one person intervened, all of this could have been avoided,” she wrote. “But they did not. And so now you are faced with the awesome responsibility of deciding whether Lisa Montgomery lives or dies.”
An Execution Date Without Warning
Montgomery, who is mentally ill, is being held at FMC Carswell, a federal prison in Texas for female prisoners with medical and mental health issues.
She is diagnosed with bipolar disorder with psychotic features and complex post-traumatic stress disorder. Mental health experts who have examined her believe that she developed an extreme dissociative disorder as a way of coping with her childhood abuse. She has been under constant psychiatric care since her arrest and takes antipsychotic medications, but still suffers frequent breaks with reality, according to her lawyers.
The crime that led her to death row was a horrific one.
In 2004, she murdered Bobbie Jo Stinnett, who was eight months pregnant, and cut open Stinnett’s abdomen, absconding with the fetus. Fetal abduction, as the crime is called, is extremely rare, and is often committed by women with documented mental illnesses, like Montgomery. She is believed to be the only woman in the U.S. with a death sentence for such an act.
Henry and her co-counsel, Amy Harwell, both of whom work at the Federal Public Defender’s Office in Nashville, Tennessee, were assigned to Montgomery’s case in 2012. At the time, federal executions were paused, with the last one occurring in 2003. When the Trump administration restarted executions this past summer, Henry wasn’t overly concerned about Montgomery.
“No one thought that they were going to execute Lisa because there are 30 guys on the row whose convictions are older than hers,” she said.
But on Oct. 16, Henry received an unexpected phone call from Montgomery, who also had Harwell on the line. Montgomery had just been summoned to the warden’s office and told that the Department of Justice had set her execution for Dec. 8. On the phone, as Montgomery relayed the news, she was hyperventilating and hysterical, unable to speak clearly.
Henry was shocked, not only by the news that Montgomery had an execution date but also by the manner in which she had been told. Usually, she said, attorneys are notified before the person on death row. “I’ve always been able to break the news to a client, which is an awful conversation to have, but at least you can be there and help them through that moment in their lives,” she said.
The moment an execution date is set, the clock starts ticking to file a clemency petition. Henry had 30 days. She and Harwell had to visit Montgomery immediately.
Traveling Amid The Pandemic
Before the coronavirus pandemic, Henry or Harwell would fly to Texas to visit Montgomery once a month to check on her and monitor her mental health. Those trips were halted last February.
Ever since, Henry had been working from home and staying indoors, taking extra precautions not to be exposed to the virus. A lot of people were relying on her to stay healthy, she said. At her office, she leads the capital habeas unit, which represents half the people on Tennessee’s death row. She and Harwell were among the most experienced lawyers and could not afford to get sick.
“To not be able to be at the top level of my practice right now, for a case that I have put my heart and soul into, is devastating.”
- Kelley Henry, attorney for Lisa Montgomery
Two days after the phone call with Montgomery, Henry and Harwell were on a flight to Carswell, Texas. They wore N-95 masks, used hand sanitizer religiously and arrived at the airport right before their flight took off, Henry said. Still, the risks of COVID-19 exposure were hard to completely mitigate. The lawyers had to rent a car and stay in a hotel, as well as visit a prison that had already been hit by a COVID-19 outbreak.
On Monday morning, Oct. 19, they showed up at FMC Carswell to see their client. Normally, Henry said, they were able to visit with her in a conference room, sitting around a table with some Cheetos and Pepsi.
This time, when they saw Montgomery, she was behind glass, wearing a “suicide smock,” a loose gown with velcro straps. Her regular clothing had been taken away, including her bra and underwear, leaving her distraught. Whenever she squatted or crouched, she told her lawyers, her breasts and genitals were exposed to the male guards watching her. She wasn’t sleeping because she felt exposed and unsafe.
Montgomery was crying as she talked to them, Henry said, and at times would dissociate. “You look at her and she’s not there, she’s gone,” she recalled. After spending hours trying to calm her down, it was obvious to Henry that before she and Harwell focused on legal arguments to save her life, they needed to try to improve her conditions.
“We had to deal with the fact that our client was in Guantanamo-like conditions,” she said. “That needed our immediate attention.”
As soon as they left the prison, Henry and Harwell reached out to the American Civil Liberties Union, which later filed a lawsuit against the federal government challenging the conditions of Montgomery’s confinement. Then they flew back to Tennessee to get to work on her clemency petition.
Over the next two weeks, Henry and Harwell traveled back and forth multiple times to see Montgomery. Her mental health dramatically worsened between their visits, Henry said. Although Montgomery was eventually given mesh underwear to wear, she had been deprived of all personal items. The prison had even taken her wedding ring, which she interpreted as an attack on her identity as a wife.
Lawyering With Brain Fog
Within days of their last visit with Montgomery on Nov. 2, Henry and Harwell were starting to feel unwell. By Nov. 11, both attorneys had tested positive for COVID-19.
And they had four days to finish Montgomery’s clemency petition.
“When I lost my sense of smell, I was like, ‘If this is all it is, I’m going to be OK,’” Henry said. “And then, pretty quickly, I had all the symptoms.”
Both women started experiencing fatigue, headaches, chills, sweats and gastrointestinal distress. They couldn’t focus, which impaired their thinking and judgment. Henry’s symptoms were so serious that she ended up in the hospital for six hours one night.
Henry was in denial that she wasn’t going to be able to work, she said.
“I was like, I’m just gonna have to suck it up,” she said. “Then I’d be sitting in a meeting about this case and I’d lose my thought in the middle of it, which is not me.”
The worst part was the debilitating fatigue and brain fog, she said, which remains today. As a lawyer, she often has to be able to read a court document, analyze it and write a response within hours. That was impossible with COVID-19.
Henry and Harwell needed more time to complete Montgomery’s clemency petition. They asked a federal judge to delay their client’s execution until they recovered from COVID-19. The complaint argued that the Justice Department was denying Montgomery’s right to counsel and her constitutional right to due process.
On Nov. 19, a district court stayed Montgomery’s execution briefly to allow Henry and Harwell to recover and to have more time to finish the clemency petition. The lawyers could have until Christmas Eve to turn it in.
The government rescheduled Montgomery’s execution for Jan. 12.
Only Days Left
Henry has not seen Montgomery in person since she got COVID-19.
She believes the Trump administration’s incredible decision to execute people during a pandemic has profoundly obstructed Montgomery and other death row inmates’ right to access counsel.
“You would never deprive your client of attorney-client visits the way she’s been deprived with them right now,” she said.
Because of the pandemic, Henry can’t carry out many of the actions she would usually take to help save a client facing imminent execution.
“Normally, with someone like Lisa, I would be having mental health experts evaluating her,” she said. “But it wouldn’t even be responsible for me to ask them to go down there, knowing what we’ve been through. And most of them work for institutions that prohibit travel anyway.”
She is planning on traveling to the Federal Correctional Complex in Terre Haute, Indiana, where federal executions take place, for the scheduled execution next week.
Attending the execution means a risk of contracting COVID-19 again.
The prison has had a surge of COVID-19 cases in recent months, coinciding with the 10 executions that have taken place there. At least nine members of the Bureau of Prisons execution team tested positive for COVID-19 in the wake of an execution. So did Yusuf Ahmed Nur, a spiritual advisor who administered last rites to federal death row inmate Orlando Hall in November. The two other men scheduled to be killed next week were both recently diagnosed with the virus.
“Reinfection is real, but I can’t let her [go] through that without us being there,” Henry said. “Not to mention just if something goes wrong, you have a right to counsel at that point.”
Montgomery does not want any family members to witness the execution; she doesn’t want that awful image of her strapped to the table to be the last memory they have of her.
Two of her children, as well as her sister, are planning to travel to Terre Haute and stand outside the prison to show support.
Henry is still holding on to hope that Montgomery’s life will be spared.
The clemency petition asks Trump to commute her sentence to life in prison without the possibility of parole. Henry believes Montgomery should still be punished for what she did, but that death is not an appropriate sentence for a woman as sick and broken as her.
“The first time she got [mental health] treatment was from the federal government,” she said. “If she’d gotten that treatment before, this wouldn’t have happened.”
When HuffPost reached out to Henry on Thursday, she was worried that in the chaos of Trump’s last days — involving an unprecedented attack on the nation’s Capitol — Montgomery’s life will simply slip through the cracks.
“We are certainly concerned about the ability of the administration to give her petition fair consideration given the extraordinary stress of current events,” she said.
Meanwhile, Henry is haunted by what she could have been doing had she not been hampered by the pandemic and her illness.
“When I have had clients executed, I could always say I know I did everything I possibly could,” she said. “I know I’m doing everything I possibly can for Lisa under these circumstances, but if the circumstances were different … I don’t know what it would be.”