MT: Killer's U.S. death sentence caught up in legal maze
Sat Dec 11, 2010 11:14
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the American Civil Liberties Union detail shortcomings in the training of Montana's execution officials, problems with outdated equipment used in administering lethal injections and other "inhumane" features of the system for putting killers to death at Montana State Prison.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."
Canadian on death row in U.S. down to last legal remedy The Canadian Press Date: Monday May. 17, 2010 CALGARY — It's been a quarter-century of legal battles and court hearings, and now the only... more
Governor says request for clemency only one factor for death row Canadian Published Sunday October 3rd, 2010 Bill Graveland, The Canadian Press The man who could hold in his hands the life of the... more
Montana schedules Canadian's execution for Jan. 31 The Associated Press Wednesday, November 3, 2010; 2:48 PM DEER LODGE, Mont. -- A Montana judge has scheduled a Jan. 31 execution date for the only... more
Countdown to Canadian's execution By MICHAEL PLATT, QMI AGENCY Last Updated: November 4, 2010 7:05am Two cheeseburgers, fries, a half-gallon of ice cream, and two bottles of Dr. Pepper. It was the... more
State, defense say execution should be delayed DECEMBER 7, 2010 HELENA (AP) — Attorneys for the state and for death-row inmate Ronald A. Smith are asking the Montana Supreme Court to block his Jan.... more
Only Canadian on U.S. death row to make clemency plea? Published On Sun Mar 20 2011 Bill Graveland The Canadian Press CALGARY—The lawyer for the only Canadian on death row in the U.S. says a plea for ... more
DEATH PENALTY Safety net remains for Canadian on death row Calgary— Globe and Mail Update Published Friday, Jan. 06, 2012 9:27PM EST A legal challenge of how Montana carries out its death penalty... more
Only Canadian on U.S. death row gets clemency hearing CBC News Posted: Feb 9, 2012 7:48 PM ET Last Updated: Feb 9, 2012 7:45 PM ET A clemency hearing has been set for two days in early May for the... more
The Canadian Press - ONLINE EDITION Outgoing Montana governor taking no action on clemency application from Ronald Smith By: Bill Graveland, The Canadian Press 7/01/2013 12:53 PM | Comments: 0 Print... more
Hope for Canadian on death row as Montana execution protocol to be put on trial By Bill Graveland, THE CANADIAN PRESS October 20, 2012 Ronald Smith is shown on Feb. 22, 2012, at Montana State Prison... more
Canadian on death row awaits answer to his challenge of the use of lethal injection BILL GRAVELAND CALGARY — The Globe and Mail Published Tuesday, Jul. 31 2012, 9:12 PM EDT A legal challenge of how... more
July 13, 2012 Montana governor meets family of death row Canadian By Matt Gouras The Associated Press HELENA, Mont. – Montana Gov. Brian Schweitzer on Friday told the family of a Canadian on death... more
Bad news for Canadian: Montana death penalty stays The Canadian Press Date: Saturday Mar. 19, 2011 CALGARY — A proposal to abolish Montana's death penalty has failed, spelling more bad news for... more
MT: Killer's U.S. death sentence caught up in legal maze Petra.,Sat Dec 11 11:14
Convicted killer Ronald Smith may be saved from execution by Montana lawmakers BY RANDY BOSWELL, POSTMEDIA NEWS DECEMBER 22, 2010 5:05 PM After a stay of execution for Alberta-born killer Ronald... more
Montana AG files brief in Montana execution case Posted: Dec 14, 2010 9:45 AM by Beth Saboe (KPAX News) Updated: Dec 14, 2010 9:45 AM HELENA - Montana Attorney General Steve Bullock says that Helena... more
Montana Supreme Court asked to decide on conflictin execution orders in death-row case By Matt Volz (CP) – November 12, 2010 HELENA, Mont. — One district judge set a Jan. 31 execution date for a... more
Ottawa's support carries weight for Canadian on death row Ashley Wiebe 6/5/2010 The lawyer for the only Canadian on death row in the U-S says Ottawa's support will carry a lot of weight if his client ... more
"And while the two majority judges confirmed Smith's death penalty, they acknowledged the Canadian's initial lawyer "failed to investigate Smith's mental state at the time of the crime, and failed to ... more