The American Civil Liberties Union filed a civil lawsuit in 2008 that argues the lethal injections the state uses to execute people are cruel and unusual punishment and violate the right to human dignity.
A trial is scheduled for Sept. 4, but both sides appeared before Judge Jeffrey Sherlock in Helena, Mont., on Wednesday and asked that he simply look at the evidence and decide on the matter.
"The District Court judge was prepared and asked questions, although it's hard to determine from the questions what his position may be relative to how he will rule on the question," Ron Waterman, a lawyer for the civil liberties union, said in an email to The Canadian Press.
Waterman said the judge could rule that lethal injections are unconstitutional or that they are fine the way they are. He could also decide to go ahead and sit through a full trial with evidence.
"The court is aware that this case is set to go to trial on Sept. 4 and therefore knows that he needs to make a ruling shortly," added Waterman.
"Judge Sherlock indicated he would make a ruling as quickly as possible and I assume he will be contacting us within the next 10 to 14 days with a decision one way or the other."
Smith, originally from Red Deer, Alta., is on death row in a Montana prison. He pleaded guilty in 1983 to shooting cousins Thomas Running Rabbit and Harvey Mad Man Jr. in the head with a sawed-off, 22-calibre rifle while he was high on drugs and alcohol. Their bodies were dumped in the woods near East Glacier, Mont.
He refused a plea deal and asked for a death sentence but later changed his mind. Three decades later, and after several execution dates were set and countless legal arguments made, his request for clemency was rejected in the spring by the Montana Board of Pardons and Parole.
His fate now lies with Montana Gov. Brian Schweitzer.
The lawsuit initially stalled while Montana attempted to upgrade the trailer where state executions take place.
The state's Department of Corrections revised its lethal injection protocol last August. But the civil liberties union says it remains insufficient in terms of training, qualifications and procedures, and fails to ensure prisoner executions are free from cruel and unusual punishment.
Waterman said the new protocol touches on a number of things but "never once mentions the inmate has a right to not suffer cruelly during the execution".
The lawsuit resulted in the most recent stay of execution for Smith which was scheduled for January 31, 2011. The Montana Supreme Court upheld the stay after a legal battle between two Montana judges.