CALGARY — Lawyers for the only Canadian on death row in the United States are beginning work on a clemency application, even though a stay of execution was upheld earlier this month.
The stay in Ronald Smith’s case will probably only be temporary, says his lawyer, Greg Jackson, who says the legal team must be ready to make their case for mercy to Montana Board of Pardons and Parole and ultimately to Gov. Brian Schweitzer.
“Really what they’re looking for are facts, circumstances, mitigation — those kind of things to determine if they are persuaded,” Jackson said from his office in Helena, Mont.
One of the focuses of the application will be the favourable comments made by the Ninth Circuit Court of Appeals — one of the several courts that has ruled on Smith’s case over the last several years.
The judges, in a split decision, acknowledged that Smith received “woefully inadequate representation” at his trial and that his state-appointed lawyer had advised him there were no defences to the charges he was facing. But they rejected the appeal on the grounds that Smith would still have been found guilty based on the evidence.
“I think largely the focus would be those same things that the Ninth Circuit Court of Appeals pointed out in their decision … that Ron is a changed person, that there certainly had been significant changes in him as a person since he has been incarcerated these past 25 years,” Jackson says.
Smith, a 53-year-old originally from Red Deer, Alta., has been living on borrowed time since he was convicted in Montana in 1983 for shooting to death two cousins, Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol.
He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beer a day at the time of the murders. Still, he refused a plea deal that would have seen him avoid death row and spend the rest of his life in prison. Three weeks later, he pleaded guilty. He asked for and was given a death sentence.
He later had a change of heart and has been on a legal roller coaster for the last 25 years. An execution date has been set five times and each time the orders were overturned.
The latest execution date was set for Jan. 31. But it got caught up in a conflict between two different judges.
Two days before the date was set, a civil court judge had issued a stay in the case.
A civil suit had been filed on Smith’s behalf by the American Civil Liberties Union, which argues that Montana’s use of lethal injection is unconstitutionally cruel.
The civil judge ruled the execution couldn’t go ahead until that case was dealt with, but the sentencing judge set the date anyway.
The Montana Supreme Court was asked to intervene in the jurisdictional dispute and upheld the stay.
Despite that, Jackson says the case will probably end up before the pardons board.
The board will publicize a hearing date and anyone interested in making a submission on Smith’s plea for mercy will have a chance to intervene.
If the board rules against clemency in death penalty cases, the matter still goes to the governor who has the final say.
Jackson is hopeful that the Canadian government will appear on Smith’s behalf and make arguments at the clemency hearing.
A Canadian court has already ruled that the Stephen Harper government must pursue clemency for Smith. Dale Eisler, Canada’s consul general for the area, told Schweitzer in June that Smith should be spared the death penalty if the case comes to him.
Eisler declined to comment on the case. A spokesman for Foreign Affairs wouldn’t say if Canadian lawyers would make arguments at the hearing.
“What I can tell you is that the Government of Canada is complying with the March 4, 2009, Federal Court Ruling, and is working with Mr. Smith’s U.S. legal representatives to support his case for clemency. Ultimately, decisions regarding Mr. Smith’s case lie with the relevant U.S. authorities,” Alain Cacchione says.
Smith’s plea for clemency will be facing an uphill battle, says a spokeswoman with Amnesy International.
“Once a person is convicted and sentenced to death it’s like trying to stop a train to prevent them from being executed. It is incredibly difficult for somebody to win clemency,” says Laura Moye, death penalty abolition campaign director.
“There has to be something extraordinary that makes the decision makers feel that the person is worthy and honestly many times because governors are involved in that process they are also subject to political calculations and how it might make them look.”
According to the Death Penalty Information Center there have been 1,233 executions in the United States since 1976. Clemency has only been granted 250 times which makes the success rate about six per cent.
“Every once in a while you get a brave decision,” says Moye. “It’s very difficult for prisoners to be viewed with mercy.”
There are a couple of things that might work in Smith’s favour. Schweitzer is a Democrat in his final term as governor and has nothing to lose politically. And Moye says a request for mercy from the Canadian government should help as well.
“I would imagine that it’s very helpful because the United States and Canada have a good relationship and I would imagine that would make a positive impact,” she says.
“But at the end of the day, the death penalty is about local level governments, it’s about state level politics and whether the officials in Montana feel compelled by Canadian opinion or not remains to be seen.”