CALGARY - Hope the outgoing governor of Montana will grant a last minute reprieve for Canadian death row inmate Ronald Smith is fading fast as Brian Schweitzer spends his last few hours in office.
Smith, 55, and his legal team had hoped Schweitzer would grant clemency in one of his final acts in office before his successor, Steve Bullock, is sworn in as Montana`s new governor later today.
One of Smith's lawyers, Don Vernay, had hoped to hear something sooner rather than later.
"It ain't over til it's over," said Vernay, in a telephone interview with The Canadian Press late Sunday night.
"We've still got a few hours. All we can do is just keep waiting and hoping."
Schweitzer had been weighing a decision since the Montana Board of Pardons and Parole recommended against granting clemency to Smith last year.
Smith issued an emotional apology at his clemency hearing in Deer Lodge, Montana last May, saying he was "horrendously sorry" for his actions.
"I do understand the pain and suffering I've put you through,'' he said directing his remarks to the families of his victims. "It was never my intent to cause any suffering for anybody. I wish there was some way I could take it back. I can't."
"All I can do is hope to move forward with my life and become a better person."
If Schweitzer doesn't deal with the clemency matter the responsibility will fall to Bullock.
"At least the new governor isn't George W. Bush but I don't know what he will do or won't do," said Vernay, who has been handling death penalty cases in Texas for the past 15 years.
"It would be neat for him to just issue clemency his first day in office and then he would have two terms to have the public forget about it."
Schweitzer had discussed death penalty cases in an interview with The Canadian Press in 2011.
"You're not talking to a governor who is jubilant about these things,'' he said from his office in Helena. "It feels like you're carrying more than the weight of an Angus bull on your shoulders."
It's believed that Schweitzer might have second thoughts about dealing with the clemency request because of an outstanding civil action involving the American Civil Liberties Union.
A ruling by Montana District Court Judge Jeffrey Sherlock last September declared the state's method of execution unconstitutional, putting all executions on hold.
But the State of Montana has convinced Sherlock to hear its arguments in an attempt to bypass a requirement to get approval from the legislature to change the way it carries out its executions.
"We have no death penalty right now and they're getting ready to litigate whether the state can change the execution protocol without going through the legislature," said Vernay.
The ACLU filed a civil lawsuit in 2008 on behalf of Smith and another death row inmate that argued the lethal injection the state uses is cruel and unusual punishment and violates the right to human dignity.
In his Sept. 6 ruling Judge 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 during executions.
He also questioned the method used to determine if an inmate is actually unconscious before receiving the lethal injection.
Sherlock indicated the state legislature needed to rejig the statutes to bring the execution protocol into line with Montana's constitution — something the Attorney General's office is now hoping to avoid.
Smith has been on death row ever since he admitted to shooting Thomas Mad Man Jr. and Harvey Running Rabbit near East Glacier, Montana in 1982.
He originally asked for the death penalty, but soon after changed his mind and has been fighting for his life ever since.
The Canadian government grudgingly sent a letter to the Parole Board asking that clemency be granted in Dec. 2011 and followed it up with another letter from Foreign Affairs Minister John Baird last month.
It made it clear that the Federal Court ordered the federal government to support Smith's case for clemency.
"The government of Canada requests that you grant clemency to Mr. Smith on humanitarian grounds,'' writes Baird. ``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.''
Smith's apology at his clemency hearing fell on deaf ears. One-by-one members of the Mad Man and Running Rabbit families demanded that Smith be executed for his crimes.