Alberta killer's U.S. death sentence caught up in legal maze

BY RANDY BOSWELL, POSTMEDIA NEWS DECEMBER 10, 2010

Alberta-born killer Ronald Smith, the only Canadian on death row in the U.S., may have taken a step closer to a Montana death chamber last month because a judge failed to pick up his phone messages.

A Jan. 31 execution date was set for Smith after a Montana judge missed — or ignored — phone and email messages alerting him another judge had already stayed the death penalty.

The messy, behind-the-scenes details are contained in new court documents generated by a bizarre legal dispute between two district court judges handling separate aspects of the case, which is likely to come down to whether the Canadian government can convince Montana's governor to commute Smith's death sentence.

The clash of judges now appears likely to force the postponing of the execution, since both Smith's lawyers and Montana's attorney general — the man ultimately responsible for the state's justice system — are pressing for a delay pending the outcome of a Smith lawsuit challenging Montana's lethal injection method of capital punishment.

"We are confident that the execution will be stayed, so as to allow the lethal injection challenge to go forward," Smith's lawyer Greg Jackson, told Postmedia News.

"Right now we are waiting for a decision from the Montana Supreme Court."

The state's top court was pulled into the case after Missoula-based District Court Judge John Larson filed a petition last month seeking confirmation of his decision to schedule Smith's execution on Jan. 31.

Larson unexpectedly set the date two days after another justice — Helena-based District Court Judge Jeffrey Sherlock — had ordered a stay of execution until the lethal-injection lawsuit is resolved.

In the suit, lawyers for Smith and the American Civil Liberties Union detail shortcomings in the training of Montana's execution officials, problems with outdated equipment used in administering lethal injections and other "inhumane" features of the system for putting killers to death at Montana State Prison.

Sherlock granted the stay on Nov. 1 after discussions with Smith's legal team and lawyers representing Montana Attorney General Steve Bullock.

Although arguing opposite sides in the lethal-injection lawsuit, the lawyers agreed the suit should be resolved before an execution date was set.

And, the lawyers advised Sherlock the lawsuit itself should only reach court once the state prison completed the design and construction of a planned, modernized death chamber to replace the controversial trailer where Montana's last execution was carried out in 2006.

Sherlock issued the stay of execution, and state lawyer Chris Tweeten was given the task of informing Larson — who was to preside over a Nov. 3 hearing to schedule Smith's execution date — about Sherlock's order.

"That day I placed at least three calls to Judge Larson," Tweeten states in an affidavit filed Monday with the Montana Supreme Court.

"In each instance the call was picked up by the voice mail of Brenda Johnson, Judge Larson's legal assistant. Her voice mail greeting suggested that the caller leave a message. It did not state that Ms. Johnson was out for the day on Nov. 1."

Tweeten received no return call. He followed with an email message to Larson but received no reply.

On Nov. 3, Larson set the Jan. 31 execution date. And on Nov. 12, citing the confusion that flowed from having contradictory judges' orders concerning Smith's execution, Larson asked Montana's top court to intervene and confirm that his setting of the execution date should override Sherlock's order to stay the execution.

"The two orders are inconsistent with each other," Larson wrote in his petition to the Montana Supreme Court.

"One sets the date for the execution of Ronald Smith; the other purports to stay the execution order," Larson stated. "A death penalty cannot be simultaneously imposed and stayed. The procedure to handle requests for stay of an imminent execution must be clear and unambiguous."

But the Montana Supreme Court filings from both Bullock's office and Smith's lawyers argue Larson himself was the source of the confusion because he had disregarded Sherlock's earlier order to stay the execution.

"Prior to the hearing to set an execution date," Smith's legal team states in its submission, Larson "was informed of the (Sherlock) injunction and thus capable of avoiding the conflict that has now been brought to the Montana Supreme Court to resolve."

The filing also describes Larson's bid to negate the stay of execution is unprecedented, noting that "there is no Montana case wherein a sitting district court judge" sought "supervisory control over another district court's actions."

Smith's lawyers also argue that Larson's position "suggests that some individuals have less access to justice and can be deprived of constitutional challenges once their execution date is set."

Smith has admitted to shooting two young Montana men — Blackfeet native cousins Thomas Running Rabbit and Harvey Mad Man — during a booze-and-drugs fuelled hitchhiking trip in 1982 from Red Deer, Alta., to Montana.

In his public comments over the past three years, Montana Gov. Brian Schweitzer has refused to say whether he would grant clemency to Smith once all of the Canadian's legal options to avoid execution have been exhausted.

But as a pro-death penalty Democrat, Schweitzer has indicated that the wishes of the victims' families will be foremost in his thoughts when he decides Smith's fate.

In 2007, following reports by Postmedia News that Canadian diplomats were lobbying Schweitzer to commute Smith's death sentence, the Conservative government announced it was ending efforts to save Smith and adopting a new, no-intervention policy regarding Canadians who face execution in democratic countries.

But last year, a Federal Court of Canada judge ruled in favour of a Smith lawsuit objecting to Canada's new policy, called the federal government's clemency reversal "unlawful'' and ordered it to restart the bid to save Smith from the death penalty.

The Foreign Affairs Department has since confirmed that it is complying with the court order and is once again seeking clemency for Smith.

Jackson didn't detail the efforts being made by Canadian officials in Montana, but said: "Canada continues to support Ron's clemency."

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