Ronald Smith, the only Canadian on death row in the United States, is one step closer to Montana’s execution chamber after an appeal court ruling that upheld his death sentence for the brutal murders of two American Indian men in 1982.
But Smith’s 25-year fight to avoid a lethal injection for his crime — which has revived the Canadian debate over capital punishment — could ultimately gain a boost from parts of the ruling made Friday, which highlighted his rehabilitation in prison, the “pitiful” failings of his initial defence lawyer and the power of Montana’s governor to grant clemency in the case.
In fact, the Seattle Ninth Circuit judges, who upheld Smith’s sentence in a 2-1 ruling, nevertheless appeared to send a message directly to Montana Gov. Brian Schweitzer, who has the authority to commute the 52-year-old Canadian’s death penalty despite the failed appeal.
“By all accounts, Smith has reformed his life,” majority judges Sidney Thomas and Margaret McKeown stated in their decision.
“He has developed strong relationships with various members of his family and has taken advantage of the educational opportunities offered by the prison that houses him. He has expressed deep regret for his deplorable actions.”
The judges noted, however, that “consideration of these issues are beyond our jurisdiction in this case. Clemency claims are committed to the wisdom of the executive branch.”
Mark Warren, a Canadian human-rights specialist who has testified on Smith’s behalf, told Canwest News Service on Sunday that the “extraordinary” phrasing of the judges’ ruling is a silver lining in the rejected appeal.
“In 20 years of reviewing death-penalty decisions, I’ve never seen more surprising language than the final paragraph in the Smith opinion,” he said. “The court signalled as clearly as it could that Ron Smith should be granted clemency by the governor of Montana.”
Smith, from Red Deer, Alta., initially asked to be executed after confessing to the murders of Harvey Mad Man and Thomas Running Rabbit during a drugs-and-alcohol-fuelled hitchhiking trip to the United States with two Canadian friends.
Smith later claimed that depression, fear and bad legal advice had prompted his prison death wish, and he began trying to avoid execution with help from Canadian government officials.
The clemency issue shot into the Canadian political spotlight in October 2007 when Canwest News Service revealed that the Conservative government was abruptly ending years of efforts by this country’s diplomats to convince Montana’s top politician to commute Smith’s death sentence.
Canadian government officials at the time said they were "not going to seek clemency in cases in democratic countries, like the United States, where there has been a fair trial."
But the new hands-off policy, defended at the time by Prime Minister Stephen Harper as consistent with his government’s tough-on-crime policies, was ruled “unlawful” last year by the Federal Court of Canada, which ordered federal officials to restart their lobbying effort to prevent Smith’s execution.
The government later agreed to re-launch the clemency bid, but Smith’s lawyers indicated last year that a renewed push to convince Schweitzer to commute the death sentence would likely only begin in earnest after the Ninth Circuit appeal was decided.
Now, because of the court’s split decision and the life-and-death issues involved in the Smith case, his legal team is expected to seek an “en banc” review of Friday’s ruling by a wider panel of Ninth Circuit judges.
A further appeal to the U.S. Supreme Court is also an option, but history suggests Smith stands little chance of winning there.
For now, only Schweitzer’s intervention could halt the momentum toward Smith’s execution.
“The message for the Canadian government in this decision is that only clemency can remedy the glaring legal flaws in Ron Smith’s case,” said Warren. "It’s time for the Canadian government to step forward and do everything possible to pave the way for clemency."
While the two majority judges confirmed Smith’s death penalty, they acknowledged the initial lawyer for the drug-and-alcohol-addicted Canadian provided sub-standard legal representation in the months following the killings.
“We hold that Smith’s defence attorney’s performance fell below an objective standard of reasonableness,” the prevailing judges ruled, “because he failed to investigate the facts of the crime, failed to investigate Smith’s mental state at the time of the crime, and failed to discuss possible defences before Smith pled guilty.”
Yet they concluded the lawyer’s failures weren’t egregious enough to scuttle Smith’s death sentence.
The third judge, however, backed Smith’s “ineffective counsel” claims and said in her dissenting opinion that the “alarmingly poor performance” of the Canadian’s lawyer in the early 1980s demanded that no execution be carried out.
“We must keep in mind that this is a capital case,” concluded Judge Betty Fletcher. “Because of the high stakes involved, our confidence is more easily shaken by unreasonable errors by trial counsel.”
The dissenting judge added: “Smith has suffered 27 years on death row, living in solitary confinement and under the constant threat of execution. . . . Executing Smith after all this time would go far beyond what is necessary to satisfy society’s moral outrage over his horrible crimes.”
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