The fate of the only Canadian on death row in the United States is now in the balance after his final legal avenue of appeal was slammed shut by the U.S. Supreme Court.

The top court has declined to review the case of Ronald Smith of Red Deer, Alta., who was convicted in 1983 of the murder of two young Montana men.


Ronald Allen Smith of Red Deer, Alta., was convicted in 1983 of the murder of two young Montana men. ((CBC))

"I'm always optimistic but also it was not unexpected," said Smith's long-time lawyer Greg Jackson in a phone interview with The Canadian Press.

"I'm concerned for Ron. Obviously I've got to know him well over the past 25 years and in a sense it's like we've grown up together. I care for him deeply and the thought of him being executed, it's sobering."

Smith, now 52, originally requested the death penalty but changed his mind and has been fighting to stay alive ever since.

The case will now be sent to courts in Montana at which time a new execution date for Smith will be set.

"It depends how quickly it gets back from the U.S. Supreme Court. It should not take long," Jackson added.

"Then it's a matter of the state court setting a hearing for Ron to appear and then to set an execution date. That's in the hands of the state and how quickly they move on that is entirely up to them."

Smith was convicted of fatally shooting two cousins, Harvey Madman Jr. and Thomas Running Rabbit, while he was high on drugs and alcohol.

He refused a plea deal that would have seen him avoid death row but spend his life in prison. Three weeks later, he pleaded guilty.

He asked for and was given a death sentence.

But he later had a change of heart and has been on a legal roller-coaster for the last 25 years. He has already been sentenced to death four times and had the order overturned on three occasions.

Once the execution date is set, a petition for clemency will be filed with the Montana Board of Pardons and Parole. A public notice will be issued and a hearing will be held to give both sides a chance to make their arguments.

The board will then issue a recommendation to either grant clemency or reject it.

"The decision in death sentence cases is not final. It is referred to the governor regardless of whether the board proposes clemency or their opinion is to deny clemency. So ultimately it does go to the governor," Jackson said.

"You know it's been a long road, a lot of appeals to the state, a lot of appeals to the federal courts. We can now look and say that the state court appeals have been exhausted, federal court appeals have been exhausted and this is the final option."

Democratic Gov. Brian Schweitzer has suggested he is undecided on what he will do.

"You're not talking to a governor who is jubilant about these things," he said from his office in Helena earlier this month. "It feels like you're carrying more than the weight of an Angus bull on your shoulders."

Canadian courts forced Stephen Harper's Conservative government to seek clemency for Smith last year after Ottawa initially balked at stepping in. Canada's consul general, Dale Eisler, met with the governor to make the request in June.

The Canadian government also has the option to make an argument at the clemency hearing, said Jackson.

"They certainly as an interested party would have every right to be heard."

Those appearing at the clemency hearing will have the opportunity to present witnesses, exhibits and testimony.