Defense lawyers attending a November 2005 dinner at a Kansas City restaurant had hoped it would be relaxed and informal.
Assigned to defend Lisa Montgomery, the Kansan accused of killing a pregnant Missourian and kidnapping a baby from her womb, the attorneys wanted to smooth out some internal friction and find a way to prepare the death-penalty case for trial.
But a sharp exchange between two lawyers splintered the team tasked with saving Montgomery’s life.
And the conflicts that flared that night still burn today.
Previous attorneys have so poorly represented Montgomery over the last 10 years that her conviction and death sentence should be set aside and a new federal trial ordered, her latest team of lawyers contends.
Some of the defense lawyers who earlier represented Montgomery sharply dispute the notion they did a poor job. But more than 700 pages of court records unsealed recently show that death-penalty defense is a high-pressure business in which everything is closely scrutinized on appeal.
Today, Montgomery awaits the outcome of her appeals at a Texas prison, the only woman among the 61 people on federal death row.
Any spirit of teamwork on Montgomery’s first team of defense lawyers evaporated at the 2005 dinner meeting.
Each of the three attorneys brought something essential.
David Owen, a veteran attorney in the federal public defender’s office, had no death penalty experience but represented the office paying for Montgomery’s defense.
Susan Hunt possessed death penalty experience but chafed at Owen’s control of the defense’s purse strings.
Judy Clarke simply was the team’s great hope. A California federal defender, Clarke had saved some of the nation’s most notorious murderers from death row: Susan Smith, convicted in South Carolina of killing her two sons; Unabomber Theodore Kaczynski; and Olympic Park bomber Eric Rudolph.
Montgomery presented the same kind of tough challenge. She’d drawn global headlines in December 2004 when federal prosecutors accused her of strangling Bobbie Jo Stinnett to death, slicing open her belly and kidnapping her unborn baby at Stinnett’s home in Skidmore, Mo.
And because authorities arrested her cradling the infant in her arms, little doubt existed that she committed the crime. A mental health defense, Clarke’s specialty, was to be mounted.
The dinner meeting turned sour when Clarke held up a form that Owen had prepared to help establish and track case priorities, according to sworn statements each lawyer later filed in court.
Here’s how Clarke described what happened: “I stated matter-of-factly that he did not know enough to be the leader of the team and that he needed to relinquish control …. I explained that the attorney on the team with the least experience should not be in control of the case.”
Hunt remembered it this way: “Ms. Clarke told Mr. Owen that he should not be setting priorities and didn’t have enough experience to make decisions about priorities.”
Owen recalled Clarke saying: “You are too stupid to set priorities and don’t have enough trial experience to make any decisions.”
Montgomery’s defense team sputtered on until April 2006, when U.S. District Judge Gary Fenner removed Clarke after hearing complaints about conflicts.
Hunt dropped out a few weeks later, saying she needed more control over the case’s budget.
But the loss of Clarke, who now defends Boston Marathon bombing defendant Dzhokhar Tsarnaev, devastated Montgomery’s chances to avoid the death penalty, her current appeals lawyers have argued.
Fenner has defended his decision to remove Clarke but acknowledged in a court filing last summer that defense issues early on were “messy” and “difficult.”
“It was all very unpleasant,” he said.
Because the appeals case remains undecided, lawyers who represented and prosecuted Montgomery declined to comment for this article. Their written recollections of the case are on file with the court, however.
Federal appeals courts upheld Montgomery’s conviction and sentence in 2011.
The current brawl is happening in the little-noticed world of secondary, or “collateral,” death penalty appeals. In a collateral appeal, new attorneys working for the condemned are encouraged to tear apart the work of defense trial team members and prove they did a poor job.
Those beleaguered defense lawyers often find that their fiercest advocates become the very federal prosecutors who put their clients on death row.
Assistant U.S. Attorney Roseann A. Ketchmark, for example, described the arguments of Montgomery’s latest appeals lawyers as the “second-guessing” of hard-working trial attorneys who faced an almost impossible job.
“Montgomery gave her defense team virtually nothing to work with,” Ketchmark wrote in court filings.
Few cases are overturned on “ineffective assistance of counsel” claims, which routinely are filed in death-penalty cases, experts said. The standard is very high because courts start their examination by presuming that the lawyers are effective.
But the U.S. Supreme Court has, in recent years, made it a little easier by requiring death-penalty lawyers to fully investigate their client’s personal history, said Richard Dieter, senior program director at the Death Penalty Information Center.
If the attorneys fail to do that, their client could get a new trial, or perhaps a new sentencing hearing where lawyers can present new evidence and argue against the death penalty.
The rigorous federal system has resulted in few executions, Dieter noted. Only three federal prisoners have been executed since 2001.
“The federal courts expect high levels of performance,” Dieter said. “There haven’t been very many federal executions.”
In May 2006, with trial more than a year away, Fenner appointed two new lawyers to assist Owen with Montgomery’s defense. With the selections of John P. O’Connor and Fred Duchardt, some would argue that she was represented by a local “dream team.”
O’Connor, a former prosecutor, had established himself as one of Kansas City’s most successful, “go-to” criminal defense lawyers.
Duchardt, though less well known, had tried more than a dozen capital cases.
Immediately they explored a medical condition called pseudocyesis, which eventually formed the heart of the insanity defense O’Connor and Duchardt offered when trial opened in October 2007. Pseudocyesis is a mental condition, often accompanied by physical symptoms, in which a person believes they are expecting a child when they are not carrying a baby.
Montgomery, who had undergone a tubal ligation, was driven by pseudocyesis and an unhealthy stew of other issues to stalk Stinnett on the Internet and then kill her, the defense argued.
But later, after Montgomery had been sentenced to die, her appeals lawyers hammered the trial team for relying on “the exotic and misguided” pseudocyesis defense.
Instead, they should have told “the true story of Lisa Montgomery’s life, her history of abuse and her mental illness and brain damage,” wrote appeals lawyer Lisa Nouri in a 238-page motion seeking a new trial.
Duchardt and prosecutors replied that jurors heard much of that history, though not packaged quite the same way suggested by Nouri and the other appeals lawyers, Christine Blegen and Kelley J. Henry.
Indeed, Duchardt pushed, without success, to admit even more evidence about the condition of Montgomery’s brain, a point that should count in his favor, said Deborah Denno, a capital punishment researcher at Fordham University.
Courts now expect lawyers to pursue that kind of evidence, Denno said.
“The fact that he was bringing in neuroscience evidence speaks well for him,” Denno said. “He’s a sophisticated lawyer.”
Just when Fenner will rule on whether Montgomery received effective representation is not clear.
But as Fenner noted in a filing last summer, Montgomery’s legal bills for this appeal are nudging close to a $550,000 cap he established earlier.
To cut costs, he trimmed one lawyer, Blegen, from Montgomery’s appeal team.
That move elicited a rare personal response from Montgomery, who wrote in an affidavit that she was concerned about more turmoil.
“The news that the court is trying to take away one of my lawyers has shaken my confidence in how my case will be handled from here on out,” Montgomery wrote.
To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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