Diane Mattingly sat on the witness stand in October 2007, prepared to share an account of her life that she had shared with few before. She’d been asked to do so by investigators working on behalf of her half-sister, Lisa Montgomery, who was on trial for capital murder and facing the death penalty. It had been about a year since Mattingly received a call on the landline in her Kentucky home. “Is this Diane?” asked a voice. “I’m part of Lisa’s team.”
Mattingly was elated—her stepmother (Montgomery’s biological mother) had sent her away to foster care when she was 8, and she hadn’t seen her sister in 33 years, though she’d tried to find her. The pair used to be inseparable. Mattingly was four years older than Montgomery and had thought of her as her baby, dressing her up and staging tea parties. “Oh my God, really? I’ve wanted to find her my whole life,” Mattingly excitedly told the woman on the phone, who identified herself as an investigator.
The mood changed as she learned that federal prosecutors were seeking the death penalty against Montgomery for the 2004 murder of 23-year-old Bobbie Jo Stinnett and the kidnapping of her unborn child. Montgomery was alleged to have cut the baby out of Stinnett’s womb using a kitchen knife after strangling her in her home in Skidmore, Missouri. She then paraded the baby around as her own, naming her Abigail.
The investigator explained that Montgomery’s legal team was trying to learn more about her life so it could make a case for the jury to spare her. Soon after, Mattingly found herself in her living room with two investigators, recounting the childhood of sexual, physical, verbal, and psychological abuse that she had endured with Montgomery. Mattingly recalled how her stepmother threw her outside naked and forced her to eat raw onions as punishment. And she told them of the nights she was raped by her stepmother’s lovers in her bedroom while Montgomery lay an arm’s length away. When the social worker took her away from the home, Mattingly vomited throughout the car ride because she knew that she could no longer protect her half-sister, she said.
On the witness stand, Mattingly expected to repeat these stories for the jury. She’d never testified in court before and felt nervous and unprepared. In the lead-up to her testimony, the defense attorney that she believed was to elicit some of the most painful memories of her life, Fred Duchardt, had spoken three sentences to her, she estimated, and never told her what she was supposed to testify about. So when Duchardt questioned Mattingly about her stepmother, simply asking, “How does she punish you?” she wasn’t sure where to start. Of the many abuses she suffered, she only had the chance to tell the jury of the beatings. They looked back at her unmoved, she remembered. And Duchardt didn’t probe further.
At the end of her testimony, she was taken into a side room and broke down in tears. “When I came down, I knew the story did not get out,” Mattingly recounted in a telephone interview with Slate. “I was angry at myself because I thought it was my fault that I didn’t do it. I didn’t know what to do. Now that I’ve looked back, I’m angry at them for failing her,” she said, referring to Montgomery’s trial attorneys.
A day later, Mattingly looked at her computer and let out a scream when she saw the jury had returned a recommendation that her sister be sentenced to die.
The Trump administration plans to execute Montgomery on Jan. 12, barring any last minute interventions from President Donald Trump or the courts. If the execution does move forward, she will be the first woman executed by the federal government in 67 years. She’d also be among the first people executed by a lame-duck president in more than a century. Since Trump restarted federal executions in July after a 17-year hiatus, he’s executed 10 people and plans to execute at least three more before President-elect Joe Biden, who has pledged to end the federal death penalty, takes office.
Mattingly, a registered Republican, is now pleading with Trump to stop Montgomery’s execution. She told Slate she’s “ashamed” she voted for Trump in 2016 and did not vote for him in November because of his plans to execute her sister. “I could not this time,” she said. “They’re all for saving babies, but to me, this is bad too. I am so disappointed in him.”
Montgomery was arrested in her Kansas home on Dec. 17, 2005, a day after Stinnett’s mother discovered her daughter’s bloody body and her missing granddaughter. Confronted by police, Montgomery quickly confessed, and the baby was returned to her family. Within five days, she had no memory of the crime, though she accepted that given the evidence, she “must have done it,” according to a psychologist hired by the defense. Asked by the psychologist if she was willing to plead guilty, Montgomery replied, “Heck yeah.” Montgomery’s condition continued to deteriorate to the point that a federal prosecutor commented that she was “obviously insane” and the psychologist recommended that she needed to be put into a psychiatric facility.
Unable to afford a lawyer, Montgomery was appointed Judy Clarke, a California attorney who specialized in death penalty cases involving severely mentally ill people who had committed particularly heinous crimes. Clarke’s goal was not to absolve Montgomery of Stinnett’s murder but to make the jury understand the decades of abuse that had brought her to commit it. This approach is common in capital cases, in which the Supreme Court allows defense attorneys to present a much broader swath of evidence than in a typical homicide case—any mitigating factors that could move a jury to recommend a life sentence rather than execution. But that strategy was soon derailed by David Owen, a high ranking Missouri federal public defender who had been appointed to lead Montgomery’s legal team, though he had never tried a capital case.
Owen controlled the purse strings and refused to approve funding for resources to help Clarke dig up information about Montgomery’s life. After Clarke advised him that this was detrimental to the case, Owen went to the judge and accused her of being “abusive beyond reasonability” and said that he would not work with her, according to court records. The judge, Gary Fenner, then removed Clarke from the case in 2006, about a year-and-a-half before the trial.
Montgomery was devastated. Her trauma had compromised her ability to trust men—her attorneys say she breaks out in hives when meeting new men—and she had grown to trust Clarke. “With Judy gone it’s difficult to have any confidence in the future of my case,” Montgomery wrote in a letter to the judge, trying to convince him to bring Clarke back.
The letter was unsuccessful. Fenner appointed Kansas City attorney Fred Duchardt to replace Clarke. Duchardt was also well-known for his performance in the courtroom, but for a different reason. In 2016, the Guardian profiled Duchardt as “the lawyer who keeps losing,” detailing his unorthodox approaches to capital cases, including his disdain for mitigation specialists. He routinely either didn’t hire or use these investigators to dig up information about a client’s life to convince the jury to show mercy. Of the seven people put on federal death row from the Western District of Missouri, four were represented by Duchardt. (Duchardt declined to be interviewed for this story, referring Slate to an affidavit and testimony he’s given as part of Montgomery’s appeals.)
Rather than prepare a case about Montgomery’s traumatic life, Duchardt began developing a defense that Montgomery was not guilty because she was legally insane. This hinged on the claim that Montgomery was suffering from a rare condition called pseudocyesis that caused her to believe she was pregnant and thought that Stinnett’s baby was hers.
At the 2007 trial, Duchardt and his team’s evidence was unconvincing—Montgomery did not fit the criteria for pseudocyesis—and government prosecutors eviscerated the long-shot insanity defense. The situation did not improve in the sentencing phase. Mattingly and the other witnesses who were supposed to tell the jury of the abuse Montgomery experienced had not been prepared before they took the stand, and their testimony fell flat. Before the jury left to contemplate whether Montgomery would live or die, a prosecutor told members that she was “wicked and evil,” and she was using “the abuse excuse” instead of taking responsibility for the crime.
In a press conference after the sentencing, Stinnett’s mother, Becky Harper, told reporters, “The case has finally come to a close, but we will never stop missing Bobbie Jo. She was a sweet and loving wife, daughter and sister and would have been a wonderful mother.” Harper did not return requests for comment from Slate.
Years after her death sentence, Montgomery was assigned two experienced capital defense attorneys from Nashville, Tennessee, for her appeal: Amy Harwell and Kelley Henry. With the help of experts and investigators, they set out to show how Stinnett’s killing was the result of Montgomery’s traumatic upbringing.
What they found was alarming, even by capital defense standards in which the majority of defendants are mentally ill victims of abuse. David Kidwell, Montgomery’s cousin, told them that she had confided to him as a teenager that she was frequently anally, orally, and vaginally gang-raped by her stepfather and his friends for hours. They would beat her up during the assaults and then urinate on her when they were finished. Montgomery’s alcoholic mother, Judy Shaughnessy, knew about the assaults but blamed Montgomery for bringing them upon herself. They also discovered that Shaughnessy prostituted Montgomery, taking money from at least two men in exchange for sex with her.
Shaughnessy also inflicted what experts say amounted to psychological abuse on her children. Montgomery’s half-brother, Teddy Kleiner, said that Shaughnessy killed his beloved dog in front of him. “She’s destroyed or taken everything I’ve ever loved,” he wrote in a declaration as part of Montgomery’s appeal. Mattingly again told investigators about the constant violence and bizarre punishments they endured, and that she believes she was ultimately sent into foster care to separate her from Montgomery. As a child, Montgomery was forced to stand in the corner for hours and received regular beatings from her mother and stepfather.
Everyone the appellate team spoke to had been willing to testify about these abuses at trial but did not because they were either unprepared or not called as witnesses.
As a result of this abuse, Montgomery developed what a psychiatrist working on her case deemed “one of the most severe cases of dissociation I’ve ever seen.” She has also been diagnosed with bipolar disorder and complex post-traumatic stress disorder.
The abuse continued into adulthood. At 18, Montgomery married her stepbrother, who raped and beat her, according to court documents. She had four children before he and Shaughnessy convinced Montgomery to undergo a sterilization procedure. At the time, she believed that she would be forced to give up one of her children if she did not have the procedure, according to a court filing. She then got a divorce and married her current husband, Kevin Montgomery. Because of her mental state, she was unable to take care of her family. Instead, she’d sit in her room for hours on the computer, one of her children told investigators. In one instance, they said that Montgomery had head lice for five years and was completely unaware.
It’s this evidence that Montgomery’s appellate attorneys say would have been important to convince the jury to vote for a lesser sentence.
In appeals, Montgomery’s attorneys have alleged that their client was sentenced to death because her defense team was constitutionally inadequate. (While Owen has cooperated, Duchardt has defended his performance.) So far that argument has been unsuccessful. They’ve also alleged Montgomery’s death sentence was disproportionate; of the 14 other known cases in which women were convicted of murder while carrying out a fetal abduction in the United States, Montgomery is the only person who ended up on death row. In a final attempt to save their client, Harwell and Henry had planned to put together a clemency petition to Trump. The work involved three trips to meet with Montgomery in Fort Worth, Texas, where she’s currently incarcerated, in the midst of the COVID-19 pandemic. Last month, both attorneys tested positive for the virus and were experiencing neurological impairments, fatigue, and other symptoms, according to a court filing. A doctor had estimated they’d need four weeks to recover. Because of their sickness, a federal judge ordered that Montgomery not be executed before Dec. 31, so the Department of Justice rescheduled her execution from Dec. 8 to Jan. 12.
Since Montgomery was notified of her execution date on Oct. 16, she has been moved into suicide watch, where she is in a cold cell with bright lights 24 hours a day. She was stripped of her standard clothing, including her bra, panties, and socks, and given only a loose gown with Velcro straps. After 14 days, a staffer finally gave her mesh underwear, telling her, “be a good girl, now,” according to a lawsuit filed last month (and dismissed earlier this month) by the American Civil Liberties Union asking a judge to step in and put an end to the conditions in which she is being held. Officials are planning to move Montgomery to Terre Haute, Indiana, the site of the federal execution chamber, in the new year.
If Montgomery’s execution does move forward, she’d be the fourth person executed by the Trump administration in his lame-duck period. To date, Trump has executed more federal prisoners since July than any president in a year since the 1800s. According to Robert Dunham, executive director of the Death Penalty Information Center, the last execution to take place after a president was voted out of office was in 1889 during Grover Cleveland’s first presidency.
“I think that this has been an administration that has deviated from social norms across the board,” he said. “And it is just a continued expression of their disregard for decency, civility, and the rule of law.”
If the execution is carried out as planned, Mattingly plans to travel to Terre Haute to protest. “I will be standing out there, I don’t care how cold it is,” she said. “I’m the big sister, I’m supposed to help her. I will fight and scream and holler until the very last moment to save her life.”