JailHélène Vallée
A lawyer representing a Canadian on death row in Indiana wants Ottawa to advocate to save her client's life, but isn't sure what kind of support, if any, the case will get.
Jennifer Merrigan said she carefully watched the political drama unfold at last week's clemency hearing of another Canadian death row inmate, Ronald Smith in Montana.
Mr. Smith's lawyers accused the Canadian government of reneging on an offer to speak at his hearing and called their tepid support in his case "treachery."
"That's been pretty disappointing," said Ms. Merrigan, an attorney with the Death Penalty Litigation Clinic in Kansas City. She has been talking with Canadian officials about providing help for her client, Robert Bolden.
"To be honest, we really haven't been able to ascertain what (support) that would be."
Mr. Smith had been considered the only Canadian currently on death row in the United States until Mr. Bolden's new team of defence lawyers made a discovery two years ago. He was born north of the border in Newfoundland.
His lawyers have since found a copy of his birth certificate and determined that not only does he have Canadian citizenship, he may not officially be American.
The revelation only recently made its way to the Canadian public, including officials with Amnesty International.
Court documents show Mr. Bolden was born in Stephenville, Nfld., in 1963. It's believed his mother was a prostitute and his father, a military serviceman, was stationed at the nearby U.S. air force base.
Ms. Merrigan said Mr. Bolden's father, who was black, was not involved in his life. His mother, who was white, struggled on her own to raise the biracial child in the small, mainly white community. When Mr. Bolden was three years old, he and his mother moved to the U.S., but it appears they never applied for American citizenship. Forged documents were used to enroll Mr. Bolden in school.
Eventually, his mother abandoned him with another family and Mr. Bolden grew up having no contact with his Canadian relatives.
Three decades later, Mr. Bolden was a father of four children and suffering from a serious drug addiction. He was separated from his wife and needed $2,000 to avoid being evicted from his home. So he hatched a plan to rob a bank in St. Louis.
Documents show he recruited two other men, and on Oct. 7, 2002, they drove to a Bank of America branch. One of the co-accused testified at trial that Mr. Bolden planned to disarm the bank guard outside then use the guard as a hostage.
But when Mr. Bolden brandished a handgun and confronted the guard in the parking lot, the guard tried to grab his gun and the pair struggled. The jury heard that Mr. Bolden shot Nathan Ley in the jaw and, after the guard fell to the ground, shot him in the head.
The jury convicted Mr. Bolden of murder during the commission of a robbery and sentenced him to the death. Now 48, he is on federal death row at Terre Haute prison, southwest of Indianapolis.
Ms. Merrigan said Mr. Bolden's case was appealed all the way through the court system before she was appointed to handle another appeal. That's when she found out he was Canadian and that officials in Canada had never been informed about his case.
She said she spoke with consular officer Sharon Simpson in Detroit in July 2010, eight years after Mr. Bolden's arrest. Ms. Simpson wrote in an affidavit that she was able to verify Mr. Bolden's birth certificate.
"I think she was surprised by that," Ms. Merrigan said. "This is a case in which Canada was not even notified that one of its own citizens was facing capital prosecution in another country. Canada was never notified that its citizen was sent to death row."
She said Ms. Simpson and another consular official have since met with Mr. Bolden at the prison. And they have written letters to prison officials to inquire about his health. Mr. Bolden was born with diabetes but has been refused a special diet behind bars and prison staff have often changed his insulin levels without consulting a doctor, said Ms. Merrigan.
She said Mr. Bolden's kidneys are deteriorating and he may need to go on dialysis.
"If Canada is not interested in the rights of its citizens abroad on death row, we think that they are still interested in their citizens not receiving adequate medical care," Ms. Merrigan said.
She said records show the U.S. government has always known Mr. Bolden was Canadian and its failure to notify Canada violated Mr. Bolden's rights under the Vienna Convention. The claim is made in the latest appeal documents.
The appeal also cites the racial make-up of the jury and questions the impartiality of the trial prosecutor, who knew the victim's family.
Ms. Merrigan said the appeal could take several years and it's a shame Canada hadn't been involved in Mr. Bolden's case from the beginning. A Liberal Canadian government would likely have been more helpful, she said.
The Canadian government had a history of automatically seeking clemency for Canadians facing the death penalty abroad. But Stephen Harper's Conservative government decided it would no longer intervene in cases in democratic countries.
A court ruling later forced the government to abandon the policy. But critics say the government remains lukewarm on offering support in some cases.
"Had the United States government fulfilled its duty and contacted Canada when Robert was first arrested," Ms. Merrigan said, "we think there would have been a significantly different level of involvement by Canada."