Defense seeks acquittal or new trial for Lisa Montgomery

KANSAS CITY, Mo. (AP) -- Attorneys for a woman facing the death penalty for killing a pregnant woman and cutting the baby from her womb have filed what promises to be the first of many appeals.

The defense is seeking the acquittal of 39-year-old Lisa Montgomery, a new trial or a new penalty phase.

In October, federal jurors rejected defense claims of mental illness and convicted Montgomery of kidnapping resulting in death in the Dec. 16, 2004, killing of Bobbie Jo Stinnett, 23, of Skidmore. Montgomery showed Stinnett's baby off as her own before she was arrested the next day at her Melvern, Kan., farmhouse.

Jurors decided the crime warranted the death penalty, which U.S. District Judge Gary A. Fenner said he would be obliged to impose when she is formally sentenced. No date has been set.

In the defense motion, filed on Nov. 30, her attorneys said Montgomery should be acquitted because the prosecution was unable to prove an essential element of the crime. The defense said that if the baby were defined as a fetus under the U.S. Supreme Court's Roe V. Wade decision, then Stinnett's death could not have been the result of a kidnapping -- a crime that requires the victim to be a person.

The defense also said a new trial and penalty phase were warranted for several reasons, including that Fenner was wrong to bar an expert defense witness from testifying that scans of Montgomery's brain show signs of mental illness. The prosecution had argued the neuropsychologist's testing methods were scientifically invalid.

In seeking a new penalty phase, the defense also claimed that the prosecution was wrong to suggest to jurors that they should hold it against Montgomery that she had "dragged" her children into court to testify on her behalf.

The prosecution has until Dec. 27 to respond to the motion.