HELENA – One judge set a Jan. 31 execution date for the only Canadian on death row in the U.S. Another judge ordered a stay in the execution.
Now the Montana Supreme Court is being asked to decide who’s right.
District Judge John W. Larson of Missoula on Friday asked the state Supreme Court to void an order by District Judge Jeffrey Sherlock of Helena that would halt the execution of Ronald Allen Smith of Red Deer, Alberta.
Larson presides over the criminal case against Smith, now 53, who pleaded guilty in 1983 in the fatal shooting of Harvey Mad Man and Thomas Running Rabbit near East Glacier the year before. He set the execution date for Smith in a Nov. 3 hearing in Deer Lodge.
Sherlock presides over a civil case filed by Smith in 2008 alleging that Montana’s method of lethal injection is unconstitutionally cruel and unusual. Sherlock ordered a stay of execution two days before Larson made his order.
Larson says in his filing that the two orders are inconsistent and can’t be reconciled. He is asking the Supreme Court to clarify the procedure his court should follow.
Larson claims exclusive jurisdiction and says a decision by a judge from another district can’t be binding on him.
“Judge Sherlock lacks authority to enjoin any party in a case not pending before him,” Larson wrote in his filing. “He does not have authority to enjoin the Montana Department of Corrections from implementing the death sentence imposed in the criminal case.”
Sherlock has not filed a response to Larson’s claims. His administrative assistant, Toni Demers, said Sherlock was not in his chambers Friday afternoon and usually does not comment to the press on ongoing cases.
Prosecutors alleged that Smith robbed the cousins and then shot them in the woods with a sawed-off .22-caliber rifle. Both victims were from Browning.
Smith was offered a plea agreement that called for a 110-year prison sentence in 1983, but he rejected that in favor of a death sentence. He changed his mind the next year and has been fighting his death sentence ever since.
The Montana Supreme Court upheld the death penalty in his case in 1986. The U.S. Supreme Court has declined to hear the case.
Canada’s consul general, Dale Eisler, met with Gov. Brian Schweitzer in June to seek clemency for Smith, arguing that his country does not believe in the death penalty. Schweitzer suggested then he was undecided on what he would do.
In the case before Sherlock, Smith’s attorney not only argued that lethal injection was cruel and unusual punishment, but said there is no approved place for executions at the state prison. The trailer typically used for executions was moved earlier this year to make way for an addition.