The 7th Circuit Court of Appeals on Sunday overturned a lower court ruling. The execution, scheduled for Monday in Indiana, would be the first federal execution in 17 years.
"The plaintiffs' APA claim lacks any arguable legal basis and is therefore frivolous," the court said in its Sunday ruling.
Lee, 47, is a former white supremacist who in 1996 robbed and murdered a family of three, including their 8-year-old daughter. The family of Lee's victims filed a petition to delay the execution because they wanted to attend, but feared traveling to Indiana during the coronavirus pandemic. A judge on Friday had granted the petition, but Sunday's ruling overturned the stay.
The family said they will appeal the decision to the Supreme Court.
"The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee's execution and their own health and safety," Baker Kurrus, an attorney representing the family, said in a statement.
"Because the government has scheduled the execution in the midst of a raging pandemic, these three women would have to put their lives at risk to travel cross-country at this time," Kurrus added. "They will now appeal the Seventh Circuit Court of Appeals' decision to the U.S. Supreme Court in an effort to seek reversal. My clients hope the Supreme Court and the federal government will respect their right to be present at the execution and delay it until travel is safe enough to make that possible."
The Justice Department argued the family's health concerns "do not outweigh the public interest in finally carrying out the lawfully imposed sentence in this case."
However, in a court filing Sunday, Justice Department officials revealed a staff member involved in preparing for the execution at FCI Terre Haute had tested positive for the coronavirus. The department said the staff member left work immediately and is self-isolating.
The DOJ said the positive test would not delay the execution further, claiming that the staff member didn't enter the execution chamber or come into contact with the team sent to the prison to carry out the execution or "with any members of the Crisis Support Team, who are involved in victim witness transportation and logistics."
Earlene Peterson, 81, is the mother of Nancy Mueller and the grandmother Sarah Powell, two of Lee's victims. Peterson, along with her surviving daughter and granddaughter, filed the initial petition to stay Lee's execution. Peterson, a supporter of President Trump, has been a vocal advocate against the execution of her daughter's killer and has even asked Mr. Trump to commute Lee's sentence to life without parole.
"Yes, Daniel Lee damaged my life, but I can't believe taking his life is going to change any of that," Peterson said in a video statement in September. "I can't see how executing Daniel Lee will honor my daughter in any way. In fact, it kinda, like, dirties her name because she wouldn't want it and I don't want it. That's not the way it should be."
The federal judge who oversaw Lee's trial and the lead prosecutor on the case have both also expressed concern over Lee's sentence. In 2014, they wrote separately to then-Attorney General Eric Holder, pointing out the disparity between Lee's sentence and that of his co-defendant, Chevie Kehoe.
Kehoe was the mastermind behind the crime, and evidence at their joint trial showed he was the one who murdered 8-year-old Sarah Powell after Lee had refused to do so. Kehoe was not sentenced to death, something advocates attribute to Kehoe appearing more "clean-cut" at trial compared to Lee, who lost an eye in a fight and has SS bolts and a triskelion tattooed on his neck.
Attorney General William Barrof federal execution last July, following a 16-year-long hiatus. Three other men besides Lee are by lethal injection this summer. Two of those executions are also planned for next week.
According to the Death Penalty Information Center, there are 62 federal prisoners currently awaiting execution on death row.