A ruling by District Court Judge Jeffrey Sherlock last year declared the state's method of execution unconstitutional. That gave hope to Canadian Ronald Smith, who faces the death penalty for the 1982 murders of two Montana men.
But the state of Montana convinced Sherlock to hear its arguments in an attempt to bypass the need for legislature approval before the state can change its execution method to address the judge's concerns.
A three-day hearing was scheduled for next week. But lead lawyer Ron Waterman of the American Civil Liberties Union says he has filed a request for a summary judgment, which would allow the judge to weigh the evidence he has already seen and make a ruling without full court proceedings.
The civil liberties union filed a lawsuit in 2008 on behalf of Smith and another death-row inmate that argued lethal injection is cruel and unusual punishment and violates the right to human dignity.
In his original ruling, Sherlock pointed to problems such as lack of training for individuals who administer the drugs and a discrepancy over whether two or three drugs should be used. He also questioned the method used to determine if an inmate is actually unconscious before receiving the lethal injection.
"All three of these concerns create a substantial risk of serious harm violative of the plaintiff's right to be protected from cruel and unusual punishment,'' the judge said in his 26-page judgment.
He indicated the state legislature needed to rejig its statutes to bring the execution protocol in line with Montana's constitution. The legislature route is complex and both Waterman and legislators have indicated it might be a steep hill to climb to get the changes through.
There is a stay on all executions in Montana until the issue is resolved.
Smith, originally from Red Deer, Alta., has been running out of legal options since he was convicted in 1983 for shooting Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol near East Glacier, Mont.
He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beers a day at the time of the murders. He refused a plea deal that would have seen him avoid death row and spend the rest of his life in prison. Three weeks later, he pleaded guilty. He asked for and was given a death sentence.
Smith later had a change of heart and has had a number of execution dates set and overturned.
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