Understand that I am against the death penalty for a variety of reasons, none of which is to say that there aren’t bad people out there who are undeserving of sympathy. And, based upon my anecdotal experience, there are a lot more of them than most people realize. Still, Lisa Montgomery’s actions reached the level of reprehensibility that would, at least arguably, put her among the “worst of the worst.”
On Dec. 16, 2004, Ms. Montgomery drove to Skidmore, Mo., where she strangled a pregnant woman named Bobbie Jo Stinnett, then sliced open her belly and took the baby to the home she shared with her husband, Kevin, in Kansas. The baby survived.
Not exactly the sort of crime that can be chalked up to the usual warm and fuzzy “blame society” excuses. Or is it?
Ms. Montgomery has bipolar disorder, temporal lobe epilepsy, complex post-traumatic stress disorder, dissociative disorder, psychosis, traumatic brain injury and most likely fetal alcohol syndrome. She was born into a family rife with mental illness, including schizophrenia, bipolar disorder and depression. Ms. Montgomery’s mother, Judy Shaughnessy, claimed to have been sexually assaulted by her father.
Ms. Montgomery’s own father left when she was a toddler. Her family moved every year, sometimes more than that — to Washington, Kansas, Colorado, back to Kansas. She was abused by her mother in extreme and sadistic ways, according to court documents and mitigation investigations with nearly 450 family members, neighbors, lawyers, social workers and teachers, most done only at the behest of the post-conviction attorneys.
And it gets worse and goes on. And on.
Lisa’s stepfather, Jack Kleiner, began to sexually assault her when she was around 13. He built a shed-like room with its own entrance on the side of the family’s trailer outside Tulsa, Okla., and kept Ms. Montgomery there. Ms. Montgomery’s post-conviction team learned that Mr. Kleiner, who was a rampant alcoholic, would bring friends over to rape her, often for hours, often three at once. Ms. Shaughnessy also began to prostitute her daughter to offset bills for plumbing and electric work.
While none of this changes what Montgomery did to Bobbie Jo Stinnett and her unborn baby, she didn’t just wake up one morning and decide, “today, I’m going to be a monster.” She was a monster in the making from the day she was born. One might think that her teachers, given her mental illness and her abuse by her “family,” might have picked up on something along the way, but apparently not. How that’s possible should boggle the mind, and yet it’s not surprising to those of us who have known, seen, adults who end up this way.
But while the commendable efforts by post-conviction counsel to prevent Lisa Montgomery’s execution, and the wrongfulness of capital punishment as a general approach, might be the focus of the article, what fails to get the attention it deserves is how, before the sentence of execution was imposed, Lisa Montgomery was failed. Failed by her lawyers. Failed by those who are now trying to hard to prevent her execution. The time to stop an execution is before it’s imposed.
The jury never saw the M.R.I. scans of Ms. Montgomery’s brain, which showed tissue loss in her parietal lobe and limbic structures, and larger-than-normal ventricles, which indicate brain damage. They never saw the PET scans, which showed an abnormal pattern of cerebral metabolism indicative of brain dysfunction. These areas can be affected by traumatic experiences and are responsible for regulating social and emotional behavior and memory.
Of course the jury never saw these things, because they require trench lawyers equipped to address the life of their client, the health of their client, the medical status of their client. It requires knowledge. It requires money. Most of all, it requires a degree of effort to save a defendant’s life that inexplicably eludes some lawyers who defend capital cases.
A capital case has two distinct parts: the trial, or culpability; and the sentencing, or punishment. The Supreme Court has held that “death is different.” Because the punishment is irreversible, the standards for a death sentence should be higher. In the sentencing phase of a capital trial, mitigation evidence in the form of life history and mental health testimony is presented to the jury; these narratives are meant to humanize the defendant and offer context to determine the appropriate punishment.
Ms. Montgomery’s guilt was never in question. But she was sentenced to death because her trial lawyers, uninformed about gender violence, didn’t seem to understand how to defend her.
Uninformed seems a bit too benign in this case.
Lisa then was represented at trial by an incompetent lawyer who has the dubious distinction of having more clients on federal death row than any other attorney. He failed to present Lisa’s jury with competent evidence about her traumatic history and severe mental illness, instead presenting pseudo-science through a witness who was not even a licensed mental health professional.
Where was the support for Montgomery, the concern that she would be executed, before she was sentence to death? A case this sordid, this salacious, surely generated huge headlines and caught public attention. It’s not as if this happened in secret and nobody knew.
Her trial lawyer, Frederick Duchardt of Kansas City, was appointed to defend her. According to the Guardian, he has more clients on death row than any other criminal defense lawyer. That could mean that he’s a terrible lawyer, or it could mean that he’s the lawyer who takes on the worst cases with the worst clients. It’s a bit facile to blame him for being incompetent after the loss, after the imposition of the death penalty.
If he was so bad, then where were the passionate lawyers fighting to save Lisa Montgomery’s life when she was in the trial court, before she was sentenced to be executed? That’s when the fight needs to be made, when the support and funding for experts and tests, when all the brilliant post-conviction lawyers could have made their brilliant arguments before death was imposed.
After a defendant is sentenced to death, everybody hops on the train to prevent the execution. This isn’t to be critical of them for doing so. But it raises the question, where are all these fine advocates before she’s sentenced to die when the fight needed to be made and the very best chance to prevent an execution was still available?
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