Insanity, Impulsivity, and Brain Scans
The prosecutors expected there would be an insanity defense. What woman would be so desperate for a child that she'd kill and mutilate another woman, unless she was outright psychotic? She had confessed to the killing, so the only move left to her attorney was an insanity defense. Her history of hysterical pregnancies would help, as would the extreme nature of the crime and the inability of most normal people to even fathom it. That she had strangled Bobbie Jo with her own hands could seem to jurors the work of a madwoman.
In fact, reporter Kevin Murphy had dug up a potential diagnosis: pseudocyesis, or the seeking of attention by faking or being deceptive about a pregnancy. He also mentioned dissociation, in which some women can convince themselves so well they're pregnant that they show physical symptoms. The underlying cause is usually intense anxiety. Apparently, the idea of being pregnant has a calming effect. Montgomery's mother had once tried to have her committed, but she'd been assessed as not being a danger to self or others, and the commitment was refused. This, too, would come up at trial.
U.S. Attorney Todd Graves announced in January 2005 that he was considering seeking the death penalty. By November, he confirmed it, and then in March 2007, issues arose over philosophical concepts. Montgomery's lawyer, Fred Duchardt, questioned whether the child she had allegedly cut from the womb was legally a person. Relying on U. S. Supreme Court rulings (Roe v. Wade), he said that if Victoria Jo was viewed as a fetus before her mother died, then she could not have been legally kidnapped, because she was not technically a person. In addition, Montgomery had been a danger to only one person, Bobbie Jo, which reduced the circumstances from being considered a capital crime. Duchardt thus asked the court to prohibit prosecutors from seeking the death penalty.
Graves argued that once Victoria was taken from her mother's womb, she was a person and could thus be kidnapped. In addition, in April 2004, President Bush had signed the Unborn Victims of Violence Act into law, protecting unborn children from assault and murder. They were thus defined as persons. In that case, the kidnapping charge was still relevant, and Montgomery had posed a danger to two people.
The trial was delayed so mental health professionals could finish their reports, but hearings occurred at the end of August 2007 with a battle of neurologists. The prosecution's expert, Dr. Alan Evans, said Montgomery's brain scan was close to normal, while the defense expert, Dr. Ruben Gur, declared that she had an abnormality that might have resulted in a mistaken belief that she was pregnant. That is, abnormalities on her brain were consistent with a diagnosis of pseudocyesis. As reported in the Kansas City Star, Gur claimed that Montgomery had suffered from a previous head injury that affected an area of the brain that controlled aggression, and perhaps she could not stop herself from committing the crime. The prosecutor challenged the credibility of this report on scientific grounds, and clinical neurologist Helen Mayberg stated that making a diagnosis about Montgomery's behavior from a brain scan "is basically impossible."
The trial was scheduled for October 2007, with an insanity defense that included evidence that Montgomery suffered from depression, post traumatic stress, pregnancy delusions, and impulsivity. It was up to U. S. District Judge Gary Fenner to decide what he would accept as science, but at this writing he had not yet made his decision. Jury selection began October 1, and the trial was expected to last a month, with over 100 pieces of evidence and nearly as many witnesses. The philosophical issue had been resolved, at least, with the decision to consider Victoria Jo a person, with full rights.
Yet it wasn't the first such incident, and others have had far worse outcomes.