CALGARY — It will be at least three weeks before Montana’s top court decides whether Ronald Smith will be put to death at the end of January.
The Montana Supreme Court has been asked to void an order that would halt the execution of the only Canadian on death row.
Judge John Larson presides over the criminal case against Smith, who is originally from Red Deer, Alta. Smith, now 53, was convicted of shooting and killing two cousins, Harvey Madman Jr. and Thomas Running Rabbit, while high on drugs and alcohol near East Glacier, Mont., in 1982.
Earlier this month Larson set a Jan. 31 execution date for Smith — just two days after Judge Jeffrey Sherlock had issued a stay.
Sherlock is presiding over a civil case filed on Smith’s behalf by the American Civil Liberties Union, which argues that Montana’s method of lethal injection is unconstitutionally cruel and unusual. That case is on hold while Montana State Prison finishes building a new death chamber and establishes protocol to be used in future executions.
In his court document, Larson argues that “Sherlock lacked the authority” to prevent the prison from carrying out the death sentence.
On Tuesday the state’s high court issued an order asking that Sherlock or his designee respond to the petition within 20 days.
“We deem it appropriate to receive a summary response to Judge Larson’s application,” reads the order.
“The response shall address only the jurisdictional arguments raised and not address the constitutionality of the means of execution proposed to be used by the State of Montana.”
Greg Jackson, who has represented Smith for the past 25 years, said Tuesday’s development is neither good nor bad news for his client. “It is a weird one, but of course the whole thing is weird, quite honestly.” He added that the high court just wants to hear the other side before ruling.
Jackson said it is unclear whether Sherlock will respond himself or turn the question over to other parties in the case, which could include Montana’s attorney general.
Smith refused a plea deal that would have seen him avoid death row but spend his life in prison. He pleaded guilty three weeks later and then asked for, and received, a death sentence. He later had a change of heart and he has been on a legal roller-coaster for the past 25 years. Several previous execution dates were set, but each was subsequently overturned.
If this execution date stands, Smith’s last resort would be a petition for clemency to the Board of Parole and Pardons and, ultimately, to Gov. Brian Schweitzer.
Jackson and his colleague Don Vernay have been working on a petition asking for clemency for Smith.
“Obviously our time period for filing it has been put on hold,” he said. “But we’re definitely working on it. Just in the unlikely event that they say it’s not stayed, then we’ve got to get it in gear.”
Canadian courts forced Stephen Harper’s Conservative government to seek clemency for Smith last year after Ottawa initially balked at stepping in.
Canada’s consul general, Dale Eisler, met with the governor to make the request in June. But Schweitzer, a Democrat, has told The Canadian Press the Harper government’s position is only one of many things he will consider when making his final decision.