The only Canadian on death row in the United States has a clemency hearing in less than a month, but a leaked document obtained by The Canadian Press suggests he may have already lost his bid before the arguments begin.
The four-page document written by a Montana Board of Pardons and Paroles staff member reviews the case and recommends against granting Ron Smith's request that his life be spared.
"Smith does not meet any of the commutation criteria as outlined in the BOPP administrative rules," the document reads. "Smith hasn't demonstrated an extended period of exemplary performance and there doesn't appear to be any extraordinary mitigating or extenuating circumstances that would constitute the exceptional remedy such as commutation.
"It is recommended that the request for a commutation of sentence be denied."
The document was mailed to Smith's lawyers by mistake and they are infuriated.
"They're playing with a stacked deck but what are you going to do?" said Don Vernay, who works out of Albuquerque, N.M., and is co-counsel for Smith.
"You're going in there and you know you've got an uphill battle but, God almighty, when you know they want to kill your client before you can get in the door — that really stinks."
Document does not represent final decision, official says
The board is holding a two-day clemency hearing for the 54-year-old Smith starting May 2 in Deer Lodge, Mont. The hearing is just a few kilometres from where the man from Red Deer, Alta., has spent the last 30 years in prison for the 1982 murders of Thomas Running Rabbit and Harvey Mad Man.
The final decision on whether Smith lives or dies will fall to Montana Gov. Brian Schweitzer. The board is to make a recommendation after the hearing.
The document sent to Smith's lawyers does not represent the board's final decision, said executive director Fern Osler. She said it was written by a staff member to provide information to the three-member board. It was sent to Smith's team in error, she said.
"It is just a staff recommendation that we do in every executive clemency hearing and in every parole board hearing. The staff reviews the file and makes a recommendation. That's just a review of the file," said Osler.
She said the decision is not predetermined and the testimony at the hearing in early May will be considered in the board's final decision.
"The staff does the investigation on every clemency and makes a recommendation to the board and then the board examines all the information, including the testimony from everybody and then makes their own decision."
Vernay and co-counsel Greg Jackson argue that although Smith was guilty of a terrible crime he has made a genuine effort to "live a life that exhibits remorse, rehabilitation, a changed heart and mind and a potential for good."
"We request that you consider and grant this application and commute Mr. Smith's sentence from death to life without parole," the lawyers wrote in the application for clemency.
'Individual's rehabilitation is limited'
The evaluation by the parole board staff member says that while Smith's behaviour has not been abysmal, it has not been stellar either, pointing to three minor infractions in his 30 years in prison.
It also quotes a psychological assessment that describes Smith in unflattering terms.
"Smith is not an individual with a strong desire to make amends or prove himself a good citizen. To the extent that clear evidence of remorse and unmitigated responsibility-taking is the gateway to rehabilitation, the impression that the extent of this individual's rehabilitation is limited, or questionable," the report says.
Vernay said it doesn't matter that this is just a recommendation from a staff member from the Board of Paroles and Pardons.
"It just shows they just want to kill this guy," Varnay said. "That's all there is to it. All they care about is the crime.
"They have no business doing that. It's ridiculous. The staff is who gives them all their information.
"Obviously we're going to put our stuff in but what they get from their staff also goes into their equation and it is skewed like crazy. The whole thing stinks. It's been like this all along.
Two men shot in the woods in Montana
Smith has been on death row since 1982. A drug-addicted drifter back then, Smith and an accomplice, both of them high on LSD and booze, marched Running Rabbit and Mad Man Jr. into the woods near East Glacier, Mont., and shot them in the head.
They were cold-blooded killings. Smith said he shot the men just to know how it felt to take a life and because he wanted to steal their car.
Prime Minister Stephen Harper's Conservative government initially refused to support Smith, saying he had been convicted in a democratic country. The decision ran counter to a long-standing policy of seeking clemency for Canadians sentenced to death in foreign lands. The Federal Court ruled the government had to back Smith.
The government did write a letter asking the board to spare Smith's life, but its public support for the bid has been minimal.
"The government of Canada does not sympathize with violent crime and this letter should not be construed as reflecting a judgment on Mr. Smith's conduct," the letter said. "The government of Canada ... requests that you grant clemency to Mr. Smith on humanitarian grounds."
The letter was signed by Foreign Affairs Minister John Baird.