HELENA – A state attorney had tried to contact the judge in a Canadian death-row inmate’s criminal case at least three times before a different judge ordered a stay over Montana’s execution methods, according to court documents.
But District Judge John Larson, of Missoula, never returned those phone calls, state attorney Chris Tweeten wrote in a court filing Monday, leaving the other judge in the inmate’s civil challenge over execution methods to issue the stay.
The stay had been sought by both the state and attorneys for death row inmate Ronald Allen Smith. Tweeten and Smith lawyer Ron Waterman reached an agreement on the morning of Nov. 1 that the execution should be delayed while Smith challenged the three-drug cocktail that Montana uses to execute inmates.
“The purpose of these discussions were to avoid a legal proceeding which would add confusion and unnecessary expense to both the criminal and civil process and to allow the civil challenge to the death protocol to proceed, before proceeding further in the criminal case,” Waterman wrote in a brief filed with the Montana Supreme Court.
When they did not hear from Larson, District Judge Jeffrey Sherlock ordered a stay in Smith’s execution. Smith’s attorney then e-mailed a copy of Sherlock’s order to Larson.
Two days later, Larson issued his own order setting a Jan. 31 execution date.
Larson has asked the state Supreme Court to resolve the apparently conflicting orders. Larson argued he has exclusive jurisdiction over the case and that Sherlock does not have the authority to keep the death sentence from being implemented.
Tweeten, writing as Sherlock’s designee, responded Monday by saying Sherlock’s order does not try to overturn or change Smith’s death sentence, or prevent Larson from setting an execution date, so there is no jurisdictional issue.
Whether the order delays the execution date is not a constitutional question for the Supreme Court to decide, Tweeten wrote in his brief.
“Stays by federal courts of executions ordered in a state court are commonplace. There is no rule of law preventing the entry of orders in one court staying executions ordered in another,” the filing reads.
But if the Supreme Court disagrees, Tweeten asked the high court to replace Sherlock’s stay of execution with its own while the civil case proceeds.
Tweeten said attorneys for both parties in the civil case thought it was appropriate to contact Larson to tell him of the steps being taken before the attorneys met with Sherlock.
“Tweeten left at least two, and possibly three, voicemail messages in which he explained the status of matters in the lethal injection case and the plan to seek a preliminary injunction staying Smith’s execution from Judge Sherlock that afternoon,” Tweeten’s brief read.
Smith is on death row for robbing two Browning men and shooting them in the woods with a sawed-off .22-caliber rifle. He 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.