Ronald Smith is currently the only Canadian facing the death penalty in the United States. The Ninth Circuit Court of Appeals upheld his capital sentence last Friday in a 2-1 ruling. The majority accepted that Smith's trial attorney failed to investigate the facts of the crime, failed to investigate Smith's mental state at the time of the crime, and failed to discuss possible defences with the client before he pled guilty. Other than actually appearing in the Montana courtroom with his client, it remains unclear what effective assistance Smith's lawyer contributed to the case.
While denying the appeal, the appeal court did highlight the rehabilitative strides that Ronald Smith had impressively taken since his incarceration. The decision now rests solely with the governor of Montana to consider commuting the death sentence by lethal injection. A letter from the Canadian justice minister should be arriving imminently at the governor's office supporting Smith's clemency. It should be accompanied by a decision released in Houston, Texas last week by a state district judge who ruled in a pre-trial motion that the death penalty was unconstitutional. The Associated Press (March 4) reported that the basis for the decision was the judge's assumption that innocent people have been executed.
Reyat's perjury trial begins in B.C.
A jury will begin hearing evidence this week in a Vancouver courtroom in the perjury trial of Inderjit Singh Reyat. Reyat is alleged to have lied repeatedly during his prior testimony at the trial of two alleged conspirators in the Air India bombing and a related bombing at an airport in Tokyo that resulted in the deaths of 331 people. Both of the alleged conspirators were subsequently acquitted in a trial that took almost a year to complete.
It is surprising that with such a highly charged and emotional background to the case, a jury was chosen for Reyat's perjury trial in less than a week. Eight women and four men were selected as jurors from a jury pool of about 150 people. Each of them took an oath of impartiality that is intrinsic to a fair trial for the defendant. According to the Canadian Press, (March 3) one member of the jury pool was excluded after she stated that she was biased because a student colleague was on the Air India plane and was killed. In another instance, an Air Canada employee admitted that he felt that he couldn't be impartial. He was excluded along with another man who claimed to be angry because he thought that the case was solved fifteen years earlier.
Rob Ramage's sentence questioned by Court of Appeal
The former Toronto Maple Leaf captain, Rob Ramage, stands a good chance of having his four year sentence reduced in a drinking and driving case that led to the death of the passenger in his car, Keith Magnuson, and injured a woman in an oncoming vehicle.
Justice David Doherty and Justice John Laskin both took issue during the hearing in the Ontario Court of Appeal with the trial judge's lack of consideration for Rob Ramage's admirable background. According to the Toronto Star, (March 2) 105 character references had been filed in support of Ramage at his sentencing attesting to his devoted community work and compassion. Noting that the entire panel was concerned about the length of the sentence, Justice Doherty openly questioned, "if you look at sentencing in a human way" why wouldn't Ramage's history as a remarkable citizen drive the sentence to the low end of the acceptable range.
In one sense Rob Ramage should consider himself fortunate. His charges did not carry minimum sentences. Minimum sentences never look at sentencing in a human way.
Conrad Black and Enron
At a hearing before the United States Supreme Court, the lawyer for former Enron executive, Jeffrey Skilling, argued that the honest services fraud statute relating to one of his convictions was unconstitutionally vague and should be struck down by the court. Conrad Black's lawyer was in the courtroom keenly observing the proceedings and had to leave feeling encouraged. If Skilling prevails it has positive implications for Black's appeal on his three mail fraud charges. The most striking feature of the Skilling hearing was that not a single question was advanced by a highly skeptical nine member court supporting the constitutionality of the honest services federal law. The Supreme Court will rule on Black's appeal before the court adjourns at the end of June. Conrad Black may be a free man by this summer.
Justice Minister announces review of documents in Afghan detainee affair
Former Supreme Court Justice, Frank Iacobucci, has been appointed by the Conservative government to determine whether documents relating to the alleged torture of Afghan detainees should be disclosed. The transfer of detainees and Canada's possible complicity in the transfer process has been a deeply contentious issue and the Iacobucci report that will ultimately be tabled in the House should resolve the political and public debate. The findings of such a venerated former jurist will be unassailable and may indeed damage the Harper government's political fortunes. It therefore must be hailed as a brave and laudable appointment.
KSM may be prosecuted in a military tribunal
The Washington Post (March 5) is reporting that the Obama administration is approaching a decision to abandon plans to try KSM, the alleged 9/11 mastermind, in civilian court in New York City and move the prosecution to a military tribunal. According to the Post, the president's advisors are reacting to bipartisan demands to move the federal trial out of New York and to a barrage of opposition mainly from Republicans to try KSM in military court.
The American Civil Liberties Union ran a full page ad in the Sunday New York Times expressing its shock about the impending change of plans and warned of a continuation of the Bush-Cheney policies. The ad describes a criminal justice system in America that has successfully handled over 300 terrorism cases in contrast to only 3 in the military commissions. Omar Khadr's trial at Guantanamo Bay in July will mark the fourth.
A decision by the president about KSM is expected to be announced within the next couple of weeks.
E-mail: skurka@crimlaw.org
