U.S. court deals blow to Canadian on death row

Lawyers for Ronald Smith, the only Canadian on death row in the United States, have failed to convince an American Appeal Court to review a ruling that puts the Alberta-born killer a step closer to execution.

In March, the U.S. Ninth Circuit Court of Appeals ruled against a bid by Smith's legal team to have his death sentence overturned. While the appeal judges acknowledged the "pitiful" performance of Smith's original lawyer during his 1983 trial for a brutal double murder in Montana, they ruled that the lawyer's numerous failings weren't enough to scuttle the death sentence imposed by the trial judge.

But March's majority ruling — a 2-1 decision by the three-judge appeal panel — was also remarkable for its sympathetic comments about Smith's remorse and rehabilitation, giving his lawyers hope that a so-called "en banc" review of the case by a wider, nine-judge panel might be granted.

That hope died last week after another 2-1 decision against Smith by the same 3 judges, leaving the U.S. Supreme Court as the last legal avenue available to the 52-year-old Canadian in his quest to avoid death by lethal injection in the execution chamber at Montana State Prison.

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 U.S. with 2 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 Gov. Brian Schweitzer to commute Smith's death sentence.

But the no-intervention 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.

As Smith's lawyers pursue clemency with Schweitzer or an appeal to the U.S. Supreme Court, the Ninth Circuit's March ruling — despite the fact that it upheld the death sentence — could still work in Smith's favour.

"We must keep in mind that this is a capital case," the dissenting justice, Judge Betty Fletcher, argued at the time. "Because of the high stakes involved, our confidence is more easily shaken by unreasonable errors by trial counsel."

And while the 2 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 discuss possible defences before Smith pleaded guilty" and was sentenced to death.

Smith's advocates interpreted the ruling as a message to Schweitzer — and to the Canadian government — that clemency should be pursued and granted in the case.

Mark Warren, a Canadian human-rights specialist who has testified on Smith's behalf, said at the time that "the court signalled as clearly as it could that Ron Smith should be granted clemency by the governor of Montana."

Source: Canwest News Service, May 11, 2010