Article of the Day: December 19, 2020

Punch After Punch, Rape After Rape, a Murderer Was Made

The execution of Lisa Montgomery would be an injustice on top of an injustice.

Dec. 18, 2020, 5:00 a.m. ET

Aidan Koch

By Rachel Louise Snyder

Ms. Snyder is the author of “No Visible Bruises,” about domestic violence.

On Jan. 12, Lisa Montgomery is set to become the first woman executed on federal death row in nearly 70 years. The last executions, both in 1953, were of Bonnie Heady, killed in a gas chamber in Missouri, and Ethel Rosenberg. Ms. Montgomery would be only the fifth woman put to death in a federal civilian execution, according to the Death Penalty Information Center.

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.

These basic facts, however, are nearly all that is not under dispute in the case. Her post-conviction lawyers, Kelley Henry, Amy Harwell and Lisa Nouri, have sent a petition to the Inter-American Commission on Human Rights claiming that Ms. Montgomery’s trial “fell far short of minimum standards of fairness” and thus violated international law, and that the United States government itself bears some culpability for her crime given its abject failure, throughout her life, to protect her from severe child abuse and sexual violence.

On Dec. 1, the commission ruled that the execution would result in “irreparable harm” and requested a delay until it has had the chance to reach a decision on Ms. Montgomery’s petition. The commission’s rulings are not legally binding, but past ones have resulted in stayed executions in Ohio and Texas.

In addition to this petition, more than one thousand supporters have put forth their own letters and petitions, including prosecutors, anti-trafficking and domestic violence organizations, and mental health practitioners.

But none of this has any real bearing on whether Ms. Montgomery’s execution will go forward. Her only chance at clemency rests entirely with President Trump — whose administration has ordered an astonishing six people be executed during his final days in office.

The Cornell Center on the Death Penalty Worldwide found that 16 other women across the United States have committed comparable crimes to Ms. Montgomery’s since the reinstatement of the death penalty in 1976, yet none of them have been executed. Even cases that captured the national spotlight — like the attacks by the Unabomber Ted Kaczynski, for instance — have not resulted in the death penalty.

So why is Lisa Montgomery going to be executed?

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.

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.

She was forced to sit for hours in a highchair if she didn’t finish her food. Ms. Shaughnessy so regularly covered her daughter’s mouth with duct tape to keep her quiet, Lisa learned not to cry. Ms. Shaughnessy told an investigator that Lisa’s first words were, “Don’t spank me. It hurts.”

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. (She refused to speak to her daughter’s post-conviction counsel, and has since died.)

Before he died in 2009, Mr. Kleiner videotaped a statement denying the abuse, but his employer testified that Mr. Kleiner had admitted to raping Ms. Montgomery. Her half brother Teddy Kleiner confirmed that their mother would make the other kids go outside while she was being raped (his statement wasn’t made until 2013).

The jury in her 2007 trial heard very little of any of this. Ms. Montgomery’s male attorneys failed to offer a comprehensive picture of her decades of torture. Instead, they suggested that Tommy Kleiner was the actual killer, despite having his own probation officer as his alibi.

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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.

And, perhaps most important, her trial lawyers did not adequately explain the insidious ways sexual and domestic violence alters one’s very neurology, behavior and sense of self. One expert witness for the government even described the rapes by Ms. Montgomery’s stepfather as consensual. “My recollection,” he testified, was that “she was a willing participant, at least at some point.”

The jurors deliberated for under five hours before reaching a guilty verdict. Days later, they recommended the sentence be death, and the judge ruled accordingly.

II.

Many children are abused in secret. What’s striking about the violence in Ms. Montgomery’s family is how many people knew about it — or at least had good reason to suspect it.

Diane Mattingly, Ms. Montgomery’s half sister, was sent to foster care after being raped by one of Ms. Shaughnessy’s acquaintances when she was 8. (Lisa was around 4, and the sisters shared a room so small they could hold hands in bed.) Ms. Mattingly testified that she threw up as she left, knowing what would befall her younger sister. Ms. Montgomery’s post-conviction team found no evidence that anyone followed up on the other children.

Others noticed, too. Lisa, an A student in elementary school, was placed in special needs classes in middle school. An administrator thought deep emotional trauma was a likely cause but it appears that the school failed to alert anyone.

When Lisa was a teenager, she told her cousin, David Kidwell, then a deputy sheriff in Kansas, that Mr. Kleiner and his friends raped her. According to court documents, he said he knew she was telling the truth — she was “crying and shaking”— and he still lives with regret about not speaking up.

When Ms. Shaughnessy and Mr. Kleiner divorced in 1985, Lisa, then 17, was forced by her mother to give a statement about the rapes for their divorce proceedings. Ms. Shaughnessy sat so unmoved during her daughter’s testimony that the judge reprimanded her for lacking empathy. A social worker found Lisa’s allegations of abuse credible and turned the file over to the Tulsa County District Attorney’s Office, where it appears no one ever followed up.

When she was 18, Ms. Montgomery married her 25-year-old stepbrother, Carl Boman, the son of Ms. Shaughnessy’s fourth husband. A report called a Biopsychosocial History, which documents Ms. Montgomery’s neurodevelopmental and social history, notes that Ms. Montgomery told a mitigation expert that Mr. Boman assaulted her vaginally and anally and with bottles, tied her in stress positions, held a knife to her throat. One of Ms. Montgomery’s half brothers told an investigator that he saw a video of Mr. Boman raping and beating her. “It was like a scene out of a horror movie,” he said, but this, too, never came up at trial. (Mr. Boman, who is in jail awaiting trial on charges of child sexual abuse, could not be reached for comment.)

By 23 she had four young children, and her grip on reality was growing ever more tenuous. At one point, she woke the kids in the middle of the night for what she said was to be an educational trip to the Alamo. She put a diaper on a pet goat, put it in the car, and drove from Kansas to Texas in a haze of mania.

Eventually, she and Mr. Boman divorced, and she married Kevin Montgomery, who has remained supportive of her throughout her legal battle. Ms. Montgomery’s Biopsychosocial History says that Mr. Montgomery insisted on incorporating sexual violence into their relationship, but that he “was not as violent or hurtful as Carl.”

In the time leading up to her crime, Ms. Montgomery repeatedly pretended to be pregnant, and each time claimed to have lost the baby. Her ex-husband, Mr. Boman, knew she was lying — Ms. Montgomery had undergone sterilization after the birth of her fourth child. Mr. Boman filed to take custody of two of their children in December 2004 — very near the time of the homicide, which surely weighed on her.

There would have been good reason to take the children away. Lisa Montgomery was an abusive and neglectful mother. The prosecutor in her case made much of this. He spoke about Ms. Montgomery’s inability to feed and bathe her children and her own lack of hygiene (she had lice for several years).

Her defense team, on the other hand, mostly avoided the subject, presumably for fear it would make her look even worse — a common mistake by lawyers in cases involving domestic violence, a miscalculation that feeds into a persistent stereotype about what a victim should look and act like. As a result, both sides flattened Lisa Montgomery’s personhood; in one version she’s a monster, and the other a myth.

Sandra Babcock, the founder and faculty director of the Cornell death penalty center and an expert in gender discrimination in capital cases, says such trials often become about a woman’s character. “Prosecutors have a set playbook in capital cases involving women,” she said. “They condemn women who are bad mothers, or who don’t fit an idealized version of femininity.”

What the defense team should have done is frame her inability to care for her children — and herself — as a symptom of her years of abuse.

On an Adverse Childhood Experiences test, Ms. Montgomery scored nine out of 10 — a number reserved for the most extreme forms of torture. On a different test, the Global Assessment of Functioning, given by one of her therapists a year or so before the crime, Ms. Montgomery scored a 48. A normal score is 80 to 100. Such a score points to “severe impairment” in daily activities. (In prison, it took Ms. Montgomery an entire month to learn to make her bed according to the guidelines.)

A social worker who spoke with Ms. Montgomery after she was arrested found she sometimes recounted her experiences in the present tense, as if she was reliving them, unable to distinguish between the present and the past. Her defense team suggested that she suffered from a rare condition called pseudocyesis — when a woman believes she is pregnant and will even develop physical symptoms. But pseudocyesis, if she had it, was a symptom of a bigger problem. (It didn’t help that the defense’s expert witness, who wasn’t a licensed mental health practitioner in this country, later said he had no special expertise in pseudocyesis.)

III.

There was chaos and churn in her defense team, and she ended up with three male attorneys, John O’Connor, Frederick Duchardt and David Owen. From 2004 to 2007, when the trial finally took place, several female attorneys either withdrew from the case or were dismissed. A lawyer who once worked with Mr. Owen, Laine Cardarella, told Ms. Montgomery’s post-conviction team that Mr. Owen was overbearing and misogynistic. (“You’re not one of those militant female lawyer types, are you?” Mr. Owen asked her once, she says.)

A particular blow to Lisa Montgomery was the loss of Judy Clarke, a renowned lawyer who helped Ted Kaczynski, Zacarias Moussaoui (conspirator in the Sept. 11 attacks) and Jared Loughner (the Arizona gunman who nearly killed Representative Gabrielle Giffords) avoid death sentences. Ms. Clarke, who has twice argued before the Supreme Court, was described in a 2015 profile in The New Yorker as quite possibly “the best death-penalty lawyer in America.”

Ms. Clark was dropped from the team in April 2006. The judge in the case, Gary Fenner, said he dismissed her because “her involvement was obstructive in getting a defense for Miss Montgomery put together.” Ms. Montgomery’s post-conviction team believes that Mr. Owen, who attended a series of unrecorded meetings with the judge leading up to Ms. Clarke’s dismissal and later described Ms. Clarke as bossy and “emasculating,” was the one who convinced Judge Fenner to dismiss her. (Mr. Owen, Mr. Duchardt and Judge Fenner declined to comment for this article.)

Ms. Montgomery, whose understanding of her own circumstances appears to wax and wane, was shattered at the loss of Ms. Clarke, who seemed to be the first attorney Ms. Montgomery had ever trusted. She was so upset, she wrote a letter to Judge Fenner, who told her Ms. Clarke was let go because she was “no longer necessary and/or helpful.” Once Ms. Clarke left, any semblance of teamwork seemed to disappear.

A year and a half later, Ms. Montgomery was convicted, and four days after that, her sentencing hearing was held.

It’s standard practice at such hearings to present mitigating evidence collected by a trained investigator called a “mitigation specialist.” Ms. Montgomery’s lawyers went through four different mitigation specialists, all of them women. Mr. Duchardt called the profession of mitigation specialists “laughable.” None of the specialists were asked to testify at Ms. Montgomery’s trial, though they have all since spoken under oath during post-conviction proceedings.

As Ms. Henry, one of the post-conviction lawyers, put it, “We’ve had a lot of training when it comes to implicit bias as it relates to race, but I don’t think we’ve had enough on gender bias.” She said she didn’t “mean to suggest the men in this case thought they were engaging in misogynistic behavior, or that their ideas of gender norms” affected the case, “but they did.”

Ms. Montgomery’s execution, far from righting a wrong, would in itself be an injustice atop an injustice.

The prosecutor, Matt Whitworth, an assistant U.S. attorney in Kansas City, Mo., used the famous Alan Dershowitz phrase “abuse excuse” in his closing argument. But what Mr. Whitworth and so many others refuse to understand is how abuse is cumulative. Traumatic brain injuries are cumulative. Punch after punch, kick after kick, rape after rape. Injured brains do not heal like injured bodies.

Of course, boys and men are also victims of abuse and sexual assault. But courts can’t treat experiences like Ms. Montgomery’s as genderless. Her rapes, her teenage marriage, the multiple pregnancies with an abusive partner — Ms. Montgomery endured a lifetime of abuse because she was a woman. She was trafficked and raped because she was a girl. And the severe cognitive impairment she suffers today is a direct result of those crimes.

“Were it not for her being a woman,” Ms. Babcock told me, “she would not be on death row, because she wouldn’t be subjected to the kind of torture that she was.” Her case, she said, “is all about gender.”

Systems failed her again and again. Child protective services failed her, the education system failed her and law enforcement failed her; later, when she was an adult, mental health services failed her and domestic violence advocacy failed, and eventually, all these failings resulted in an unimaginable crime.

No one is arguing that Lisa Montgomery should be freed from prison. But her abuse should take death off the table.

That the Department of Justice is ordering executions in the middle of a pandemic is itself cause for alarm. Since the Supreme Court has prohibited the execution of people who are mentally incompetent, Ms. Montgomery is entitled to be assessed by a mental health professional close to the date of her execution — something that might not be possible during the coronavirus outbreak. No one can visit her at her prison in Texas except her immediate family and her lawyers, two of whom are based in Nashville and are recovering from Covid-19. The third lawyer is based in Kansas City and cannot travel to Texas because of the risks posed by the virus.

As Ms. Montgomery’s legal team wrote to the Inter-American Commission on Human Rights, “In its haste to execute her notwithstanding the pandemic, the government has violated her rights to petition the authorities and to due process.”

Retribution is one method of accountability for criminal acts. But Ms. Montgomery’s life, however much she has left of it, is already irreparably shattered. For many of us, that might seem punishment enough.

Rachel Louise Snyder is an associate professor at American University and the author of “No Visible Bruises.”

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