The Eleventh Circuit will take up an appeal by Reality Winner over whether she should be released from a federal prison, where COVID-19 has already killed one inmate, and be allowed to serve the remainder of her sentence in home confinement. 

The federal appeals court in Atlanta also agreed to expedite Winner's appeal in a brief order handed down Monday that was signed by signed by Judge Adalberto Jordan.

Last month, Winner counsel Joe Whitley, a Baker Donelson partner in Atlanta, appealed a ruling by District Chief Judge Randal Hall of the the U.S. District Court for the Southern District of Georgia denying Winner release from FMC-Carswell in Fort Worth, Texas. Winner has served 36 months of a 63-month sentence for espionage after she provided a single page of classified information to online publication The Intercept in 2017 on Russian efforts to hack state election systems in the run-up to the 2016 election.

She was the first person prosecuted by the Trump administration for leaking information to the media.

Whitley sought Winner's release in April after the rapid spread of COVID-19 through the nation's prison system prompted U.S. Attorney General William Barr to urge the U.S. Bureau of Prisons to review all at-risk inmates for potential release to home confinement. At the time, two inmates had already tested positive for the virus at FMC-Carswell, which houses medically fragile women. Six prison guards were also self-isolating after manifesting symptoms of the virus.

On Monday, the Bureau of Prisons reported that 46 inmates and five staff have tested positive for the virus at the prison. 

Meanwhile, federal authorities have released President Donald Trump's former personal lawyer Michael Cohen and Paul Manafort, the president's 2016 campaign chairman, to complete their sentences in home confinement. Manafort served 23 months of a 90-month sentence that included multiple counts of tax fraud and bank fraud, conspiracy to defraud the United States and witness tampering. Cohen was serving a three-year sentence for lying to Congress and for tax and campaign finance violations stemming from hush money paid during the 2016 presidential campaign to two women who claimed to have had affairs with Trump. 

Whitley contends in the appeal that Hall failed to consider the relevant factors and misapplied the law. He also contends the judge "substituted an arbitrary, predetermined ruling for any actual exercise of discretion" in denying Winner an opportunity to present evidence to support her claim that she's particularly vulnerable to the virus.

"It was very welcome news," Whitley said Monday. 

Winner's mother, Billie Winner-Davis, called it "heart-breaking" that her daughter remains  in custody during a pandemic when others "get preferential treatment."

"I think the way she has been treated has been overly harsh in comparison to others when you look at what she did," Winner-Davis said. "I worry about her every single day, her physical health, her mental health. I hope the court sees this is doing damage to her, and it might kill her."

Barry Paschal, a spokesman for U.S. Attorney Bobby Christine of the Southern District of Georgia, where Winner was prosecuted, declined to comment.

Christine has fought Winner's release since her arrest, ensuring that she was denied bond and remained in custody until she pleaded guilty.

Responding to Winner's appeal, Christine renewed his argument that Winner had not exhausted administrative remedies in seeking release from the Bureau of Prisons and quibbled as to whether she sought release to home confinement or a compassionate release that would allow for a sentence reduction.

Christine also accused Winner of an "attempt at line-jumping," arguing that she petitioned Hall for release before allowing the already overwhelmed Bureau of Prisons—then facing court orders in other states where COVID-19 was already racing through other federal prison facilities—30 days to respond to her release request. Winner, he concluded, "should not be allowed to leapfrog other defendants who are following the statutory requirements."