CALGARY – After a quarter century of legal battles and last minute reprieves the appeals of a Canadian fighting the death penalty in Montana are starting to dry up.
Lawyers for convicted double murderer Ronald Smith were before the U.S. Court of Appeals for the Ninth Circuit earlier this spring arguing the Red Deer, Alta., man didn’t have effective counsel when he pleaded guilty in 1983 and that the death penalty wasn’t warranted in the case.
If they prevail, it’s possible the guilty plea could be withdrawn and things would start over, Smith’s longtime lawyer Greg Jackson says.
If not, the only recourse through the courts would be to ask the United States Supreme Court to look at the case. But the top court is very selective about the cases it hears.
“If they wouldn’t that would be the end of the road in terms of appeals,” Jackson acknowledged, in an interview from his office in Helena, Mont.
“In reality that could be done in roughly a year.”
If the appeals do dry up, Smith’s last hope is to seek clemency from Montana Gov. Brian Schweitzer, a Democrat who supports capital punishment.
His chances of achieving that received a boost in March after a Canadian Federal Court ruling ordered the Canadian government to try to win clemency for Smith. Justice Robert Barnes ruled the government couldn’t arbitrarily end a long-standing policy of routinely seeking clemency in such cases.
But there are no plans for Smith’s lawyers to ask for clemency now, says Jackson.
“We anticipate if we sought clemency at this stage the governor may well say you’ve got the rest of your appeals and anything I would do right now would be premature,” Jackson said.
That position could change if the Canadian government were to actively pursue the matter with the governor at this stage, Jackson notes.
Smith is currently the only Canadian on death row in the United States.
He was convicted in 1983 of murdering two cousins, Harvey Madman Jr. and Thomas Running Rabbit, during an drug and alcohol fuelled spree in Montana the year before.
At first, Smith refused a plea deal that would have given him a life sentence. Three weeks later, he pleaded guilty and asked for a death sentence. He got it.
Since then, he’s ridden a roller-coaster of appeals won and lost, death sentences overturned and re-imposed.
For the past quarter century Smith has spent 23 hours a day in his cell in the maximum security wing of the Montana State Prison at Deer Lodge. Out behind that wing sits a small trailer, the state’s death chamber where three men have been executed by lethal injection over the last decade.
“I tell you it’s always in the back of your mind. Knowing that the execution is looming there. It’s always on your mind, as it is on Ron’s. He lives with the prospect of death every day and has every day for the past 24 years,” said Jackson.
There was short-lived optimism for Smith earlier this year that Montana would abolish the death penalty.
The Montana senate voted 27-23 to abolish the practice, but for the second time in four years the matter didn’t make it past a house committee to actually make it to a vote.
Sen. Dave Wanzenried of Missoula says the pro-death-penalty lobby put enough pressure on house members to kill the bill, but he will revisit the matter again in two years.
“The day after we adjourned I went over to a meeting and we talked about strategy for the 2011 session and laid out a strategy very similar to this one,” said Wanzenried.
“We will do the work in the meantime to ensure that next time we aren’t just close but actually have the votes to pass it.”
Wanzenried says Montanans are slowly coming around to the view that the death penalty is a “a hollow, decrepit institution.” He says his legislation would have replaced the death penalty with life in prison with no possibility of parole.
“We have 38 people in Deer Lodge serving that penalty for murder so why wouldn’t we apply the death penalty in those 38 cases as well,” he said.
“The more you look at those cases in comparison to those two on death row they’re indistinguishable. The question then is: Are the victims of the 38 any different than the two and the answer is of course not? They are just as dead.”
