Yesterday the United States Court of Appeals for the DC Circuit set aside an Order by a United States District Court Judge which had blocked the execution of Linda Montgomery, currently set to take place on January 12, 2021.

Montgomery was convicted of the December 16, 2004, murder of 23-year-old Bobbi Jo Stinnett in Skidmore, Missouri. Stinnett was eight months pregnant when Montgomery strangled her.

Montgomery entered Stinnett’s house that day under the guise of being a purchaser of a Rat Terrier puppy bred by Stinnett and her husband.  After strangling Stinnett, Montgomery cut the baby from her womb and left.

Police located Montogomery at her home in Melvern, Kansas approximately 170 miles away.  They were able to focus on her as a suspect by looking at the history of communications between the two in the days leading up to the murder.

She was convicted following a jury trial, and the district court judge affirmed the jury’s recommendation that she be sentenced to death.  There were many issues raised on appeal with regard to her mental fitness, as well as claims that she did not receive effective assistance of counsel at trial because of a shifting defense strategy — which at one point sought to blame Montgomery’s brother for the murder.  This alienated Montgomery’s family from the defense and led to a lack of cooperation by family members who might have been of assistance at trial in testifying to the history of physical and sexual abuse she suffered at the hands of her stepfather.

Montgomery’s appeals were denied, and the Supreme Court denied her petition for review of her conviction or sentence.

She was originally scheduled for execution on December 8, but a district court judge in Washington DC blocked her execution on that date because one of her attorneys contracted COVID-19 in the weeks leading up to the execution date, which hindered his ability to work on her clemency petition.  The Federal Bureau of Prisons set a new execution date for January 12, 2021.

On December 24, 2020, the same district court judge issued an order blocking the new execution date on the grounds that the Bureau of Prisons had not followed its own published regulations in setting the new execution date.  Yesterday’s order summarily reversed that Christmas Eve decision, and reinstated the January 12, 2021, execution date.

But the legal maneuverings are likely not over yet.  Yesterday’s order gave Montgomery’s attorneys until 5:00 pm today to file any petition for rehearing or rehearing en banc.  

The three-judge panel of the DC Circuit that reinstated the execution date includes a Bush appointee and two Trump appointees.  It would take only one judge on the Court to ask for a vote for en banc review by the Court, and the process for taking that vote could last a few days.

Unlike most drawn-out reviews of death penalty cases involving federal crimes, where the review is simply delaying the inevitable, it is likely that Montgomery’s execution will be cancelled if her attorneys can get her past the next scheduled execution date.  It is likely that a Biden Administration will direct the Bureau of Prisons to postpone the execution if it is not carried out before January 21, 2021.   Eliminating the federal death penalty is key issue for many elements of the Democrat party coalition.  A Biden Administration may not ever get quite that far, but it certainly wouldn’t carry out a death sentence in the early weeks and months after taking over the Department of Justice.

This will likely be a bit of a “dance” because if the DC Circuit was to act too quickly, it could run the risk that the Supreme Court could step in and undo whatever a judge or judges on the DC Circuit attempt to do.

On the other hand, given the pending changeover in administrations, there would certainly be a “ghoulish” element added to the public perception of the court activity if that was to happen as the left-wing and media would certainly portray it as actions by the Supreme Court rushing to ensure the carrying out of an execution mere days before it would almost certainly be abandoned by a new Biden Administration.

Only three women have ever been executed by the U.S. federal government: Mary Surratt in 1865, and Ethel Rosenberg and Bonnie Heady, both in 1953.