A hearing before the Montana Board of Pardons and Parole begins Wednesday where Smith will ask for clemency, but even if he loses there's no guarantee that a new execution date will be set.
"There is nothing to compel the setting of a new execution date even if the governor denies clemency. I think that's up to the state and the state's attorney to determine whatever process they want to go through next," said Diana Koch, legal counsel for the board.
"I believe there's a hold, there's a stay on the execution because of the pending lawsuit."
The American Civil Liberties Union filed a civil lawsuit on Smith's behalf in 2008 that argues Montana's executions amount to cruel and unusual punishment.
The next court date in the lawsuit is scheduled for this fall.
An official with the group, Ron Waterman, told The Canadian Press earlier this year that the lawsuit and the clemency hearing are "parallel proceedings" and the application for clemency is not a factor in the civil suit.
Waterman said the lawsuit has stalled while Montana has attempted to upgrade the trailer where state executions take place.
What is required, Waterman said, is the installation of a mini surgical suite. That would allow an inmate to be monitored during the administration of the drugs that render him unconscious and eventually stop the heart.
Smith, 54, originally from Red Deer, Alta., pleaded guilty in 1983 to shooting cousins Thomas Running Rabbit and Harvey Mad Man in the head while he was high on drugs and alcohol. Their bodies were dumped in the woods near East Glacier, Mont.
He refused a plea deal that would have seen him avoid death row and asked for a death sentence. Smith later changed his mind. But nearly three decades later, after countless legal arguments, his avenues of appeal have all but dried up.
Close to 40 witnesses are on the list to testify at the clemency hearing at the courthouse in Deer Lodge, near the state prison where Smith has been living for the past 30 years. Once the parole board delivers its recommendation, Smith's fate will ultimately end up in the hands of Gov. Brian Schweitzer.
Fern Osler said the board has received about 400 letters, most of them opposing the death penalty.
A board official has already recommended to the three-member panel that Smith's request be denied. The official's report angered Smith's lawyers when they received it last month. They say it left them with a feeling that the deck is already stacked against their client.
But Osler said Tuesday that the report is just one of many things being considered in making the final decision.
"It was public information that was sent out. It is just one part of the information that the board will hear," she said.
"The board members will conduct the hearing in a very fair process. They're all very fair people — citizens of Montana."
The board has 30 days to make its recommendation, which will then be sent to Schweitzer.Suggest a correction