An “Uninformed” Defense

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?

19 thoughts on “An “Uninformed” Defense

  1. tk

    Many, many years ago, when I was a reporter at a regional daily in the affluent suburbs of New Jersey, I was contacted by a 19-year-old man who was in prison for kidnapping and rape. It wasn’t his first sex crime, and he didn’t dispute his guilt, but he wanted me to look at his record. He sent me hundreds of pages of documents that showed quite clearly how the state had failed him.

    He was a ward off the state since he was a little boy, and state-appointed counselors had been writing red-flag reports about him since he was about eight years old — sociopathy, mental illness, retardation. He was a danger to the public and himself. At 13, while still a ward of the state, he kidnapped a woman, tied her to a tree in the woods and tried to rape her. He was physically unable to complete the act, and the very coolheaded victim talked him into releasing her, instead of stabbing her with the rather large knife he had stolen.

    He was arrested and put in juvenile detention, where psychologists wrote reports documenting how dangerous he was, and, in their view, incurable. But he was released when he turned 18, and almost immediately kidnapped and raped another woman.

    It would be nice to be able to say that sometimes someone slips through the cracks. But it’s not that the system sometimes fails; it’s that it is institutionally broken.

    1. SHG Post author

      What does saying the “system” is “institutionally broken” contribute? Like “systemic racism,” it’s meaningless rhetoric. There are reasons the “system” does what it does, and without both knowing why and addressing specifics, nothing can be understood or fixed. And then comes the really painful part: no system can fix every problem, so which problems are left unaddressed?

    2. Rengit

      What do you do with a person like that, though? Prior to JFK’s phasing out of mass institutionalization, a process that took two decades to complete and had support across the political spectrum, we had kept the severely mentally ill in state sanitariums more or less forever, and that was the era of horror treatments like lobotomies, thorazine, shock treatment. Now, and since the late 70s, we have let them roam around on the street with an advisory to take their meds, they wind up often homeless and with severe drug and alcohol problems, and they inevitably commit a crime (minor or severe), send them to prison or to a psychiatric facility, and then let them out and the cycle repeats.

      The institutions that we had to handle people like your example case are “broken” precisely because people in the 60s and 70s chose to break those institutions, because they were viewed as abusive and a deprivation of liberty.

    1. Onlymom

      Sure it. The universe is always fair. It gives each of us the chance to be born and a time to die. Nothing else is guaranteed.

  2. Jay

    I know you don’t do DP yourself but you know enough of us that I’m surprised you don’t know how it works.
    It goes like this:
    Step 1: Horrible murder
    Step 2: Counsel assigned
    Step 3: Death Penalty Sought
    Step 4: Counsel realizes not death qualified (this may happen before 3 depending on jurisdiction)
    Step 5: Panic
    Step 6: Proper counsel assigned
    Step 7: various nonprofits reach out to counsel offering assistance
    Step 8: government goes goofballs, arresting your experts and using search warrants to get their records on your client, the city creates a fountain in honor of the victim, madness grips the courthouse
    Step 9: you lose
    Step 10: appellate and post conviction attorneys start the long perilous journey of trying to A. Keep the case around (and thus the person) for as long as possible and B. Try to get the government or a judge to get the client of death row now that the media stopped caring about the case

    As you can see- your question is kind of a non sequitur. To beat the death penalty into submission, like Colorado did, you need the best damn lawyers for the defense and judges willing to help out. You could air-drop the colorado method squad into every case but until the courts are willing to let the defense do its job, it won’t do you any good. Hell, the best thing the colorado guys have is their jury selection, which feds won’t even let you do.

    1. David

      You didn’t do badly, but not entirely well, up to 6 before you went completely off the rails. Maybe that’s how it works where you practice, but not elsewhere.

  3. Jeffrey M Gamso

    It’s always better to win earlier, of course. And as a generic statement, capital trial counsel are probably better today than they were even 5 or 10 years ago – certainly better than 20 years ago. But that generic. Not everyone’s better. And better than what is always a proper question.

    Too many people are doing these cases – mostly appointed but in rare cases retained – who are simply incompetent, incompetent because uninterested, or rendered incompetent by the lack of resources.

    There are first-rate folks doing the trial work, of course. And there are offices/agencies that can provide adequate resources at least some of the time. Even some judges will provide. But too often . . . .

    Appellate counsel are mostly (there are maybe some jurisdictions where this isn’t true) stuck with the trial court record, and state post-conviction is too often merely a joke. So it’s up to habeas counsel operating under AEDPA and the folks doing the frantic late-stage work. Too little, and too often too late.


    (Did I mention, not to brag, but what the hell, that I just won the 2020 Lifesaver Award for Excellence in Capital Litigation from the Ohio Association of Criminal Defense Lawyers?)

  4. John Barleycorn

    Has it ever occurred to you that if you took a few weeks “off” (as in not with a device in hand, not checking in, etc..etc, blah, blah,,,);

    That you might actually fold aggregation in on itself?

    WTF do I know, worth a read I guess….

    You are are not growing stronger esteemed one, not weak by any measure, but it is time.

    I would send you a fucking mirror, but you just need a joint, a beach, and a beer.

    And some love you FUCK!!! All the latter is on you….

    YOU AIN’T WRONG, but you are a long way from where you need to be with yourself.

    I am an expert, on that, don’t trust me!

    Happy Solstice.

    P.S. Your “lawyer” posts have definitively devolved over the years. You still usually carry a relevant point throughout however.

    wink and cheers;

    go fuck yourself….

    and have a great new years, you fucking pussy fuck!

    p.s.s. could be a real chance I just “do not get” your disconnect, style deviation. If so, never will; so says a few…

    If you can not afford the beach, building an outbuilding or six hours a day remodeling the woodshed could work. But so you you know the Nebraska strip clubs suck, and Iowa is not that far away.

    Could be in the end, could be…. you are just polluted and have no Iowa in you, nor even understand, even though you think you do? (you might even think you know you do)

    Quad P.S. The post is fucking solid, you are not. Vacation is not vacation, no money, no mirror, just you you, you… you fucking stuborn turd in need of a self polish.

    “…for a variety of reasons..” , if I had my way I would gag you fort passively restrained the fist days.

    Fuck the death penalty period!

    And fuck you Greenfield…. you anit got boo for “variety” anyway recently….

    Hopefully written and received in good spirit.

      1. John Barleycorn

        I love you dear!

        Christmas, hope you have a “place” with a view of the stars.

        Fuck the death penalty period!


  5. Jennifer Carson

    I’m just curious. Are Lisa’s Mother and Stepfather still alive? Could they be prosecuted? Seems like they have enough witnesses for the abuse and rapes. Her parents should get the death penalty!

    1. SHG Post author

      Normally, I would trash a comment of this utter idiocy and irony, but I want other here to know that people like you exist. I shouldn’t be forced to suffer alone.

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