07/31/2012 02:06 EDT | Updated 05/10/2013 05:12 EDT

Ronald Smith Lawsuit Challenging Montana's Lethal Injection To Go Before Judge

CALGARY - A legal challenge of how Montana carries out its death penalty is to go before a judge Wednesday for a death-row Canadian waiting to hear whether he will be granted clemency.

The American Civil Liberties Union filed a civil lawsuit on Ron Smith's behalf 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 are asking Judge Jeffrey Sherlock in Helena, Mont., to simply look at the evidence and make a decision immediately.

"We're going to ask the judge to say yes or no as a matter of law and therefore there's no need to put evidence on," Ron Waterman, a lawyer for the civil liberties union, said Tuesday in an interview with The Canadian Press.

"What we've got from the discoveries that we've engaged in so far demonstrates that the protocol is just so deficient that it's unconstitutional and the court can declare it unconstitutional as a matter of law," he added.

"I think the case is capable of being decided Wednesday in our favour and quite frankly that's what I expect."

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.

Whatever his ruling, Sherlock is likely to take his time to write a "fairly succinct" decision which Waterman doesn't expect until later this summer.

Smith, originally from Red Deer, Alta., 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 this spring by the Montana Board of Pardons and Parole.

His chance to live out his days in a tiny cell at Montana State Prison is now in the hands of Gov. Brian Schweitzer.

"It might provide the governor an additional reason to say at least there's been litigation raised that questions the protocol and this litigation is going to extend out for years and years and it's time to put this to bed,'' said Waterman.

The lawsuit initially stalled while Montana attempted to upgrade the trailer where state executions take place.

The Montana 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.

"The state’s new protocol touches on many things, including how the prisoner is to be transported, where the witnesses will sit and how the prisoner will get his or her last meal, but it never once even mentions that the inmate has a right to not suffer cruelly during the execution,” said Waterman.

Procedures and training are covered in vague terms that leave too much up to chance, he said. Executioners are not required to be trained physicians or nurses, but only require a "familiarity" with intravenous drug administration.

There are no details about how an officer administering the complicated three-drug lethal injection is to react if the fast-acting barbiturate is improperly prepared or administered, so a prisoner could be fully conscious and in excruciating pain when the paralytic agent is injected.

"Those second and third drugs can be very extremely painful to a person unless that person has achieved close to ... unconsciousness ....''

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.