National Post (National Edition)
A Canadian on death row
THE U.S. IS ON A FEDERAL EXECUTION SPREE — AND A KILLER FROM NEWFOUNDLAND WAITS
ROBERT BOLDEN DID NOT KILL NATHAN LEY BECAUSE OF A TROUBLED YOUTH OR PROBLEMS AT HOME. HE KILLED HIM AS PART OF A ROBBERY TO GET MONEY.
— PROSECUTOR STEVEN HOLTSHOUSER
Eighteen years ago, Robert Bolden needed $2,000 to pay his rent. He convinced two other men to help him rob a Bank of America branch in St. Louis, Missouri.
The scheme was straightforward: stick up a security guard, take a hostage inside the bank, get the money and flee in Bolden's car.
On Oct. 7, 2002, a Monday, they put their plan into action. They didn't even make it into the bank. Two gunshots left a security guard dead, and Bolden was the triggerman.
Bolden was sentenced to death by a U.S. federal jury in 2006. He's been on federal death row ever since, awaiting the outcomes of various appeals and court battles moving through the Byzantine American legal system.
None of this is uncommon on U.S. death row: a desperately inept crime, a tragic death, a long court journey.
What is less common is that Robert Bolden is a Canadian. He's the only Canadian on U.S. federal death row. There is one other Canadian, Ronald Allen Smith, an Albertan, who is facing execution by the state of Montana. They are just two of the 123 foreign nationals, men and women from 34 countries, on federal and state death rows across the United States.
When Bolden was sentenced to die, the jury didn't know he was a Canadian citizen. The Canadian government was also unaware that one of its citizens faced the death penalty.
This is key in Bolden's fight to avoid the needle, which is happening at a strange and frightening time. The United States is one of the few developed democracies — Taiwan, South Korea and Japan among them — that still executes people.
In July 2020, after a 17-year hiatus, the U.S. government resumed killing federal death row prisoners. Since then, the Donald Trump administration has been on an execution spree: 10 people have been executed in the death chamber in Terre Haute, Indiana, in the last six months.
Three more people — including one woman — are scheduled to die before President-elect Joe Biden takes the Oval Office on Jan. 20.
Most U.S. death rows are in the state system, but there are certain federal capital crimes — treason, espionage, assassinating the president — with a death penalty. Committing murder during a car jacking — or a bank robbery — are among them.
Last year, 2020, was the first time in U.S. history that the federal government killed more people than state governments (22 people were executed in the U.S. in 2019, none of them by the federal government).
“The spate of executions during this last year of the Trump administration has been extraordinary,” said David Dow, the Cullen Professor at the University of Houston Law Center, and an expert in death penalty law.
“I don't think that there's anybody who's been paying attention to the federal death penalty who thinks that anything like that will continue once Trump leaves office.”
There are several new grim milestones in the Trump administration execution record:
The execution of Christopher Vialva in September marked the first execution in 68 years of an offender who was a teenager at the time of his crime. Vialva was 19 when he shot and killed two youth ministers during a carjacking in 1999.
Brandon Bernard, Vialva's co-defendant, who was 18 at the time, was put to death in December, despite a high-profile campaign by Kim Kardashian West calling for clemency.
On Jan. 12, Lisa Montgomery is scheduled to die for strangling 23-year-old Bobbie Jo Stinnett, who was eight months pregnant, and cutting out her fetus. The baby survived. This will be the first execution of a woman by the federal government in 70 years.
That 10 men died in the U.S. federal death chamber in Indiana is partly the culmination of a yearslong search for drugs to kill people. Quite simply, the lethal drug cocktails historically used have become unavailable, leading to a variety of experimental execution drugs, which, on occasion, have resulted in gruesomely botched executions.
Dow also points a finger at former Attorney General William Barr for the push to execute. Barr, he said, is a “very strong believer in the death penalty.”
In the summer of 2019, Barr ordered the Bureau of Prisons to adopt a new method of execution: a single dose of pentobarbital, which causes respiratory failure. The previous method, a threedrug cocktail, faced shortages during the years Barack Obama was president.
Fear of the needle has, astonishingly, led some inmates to seek alternative ways to die.
In February 2020, Nicholas Sutton was executed by the state of Tennessee by electric chair, a choice four others have made in recent years, citing the dangers of untried lethal injection drugs. (The electric chair, it should be noted, dropped off as an execution method in the 1990s after Florida's electric chair malfunctioned twice, setting alight the heads of two condemned men.)
In late November, the U.S. Department of Justice amended its federal execution method rules, saying that any methods allowed by states may also be used to execute federal prisoners. While lethal injection is, by far, the most common, many states have older methods on the books: nine states allow for the electric chair, six allow use of the gas chamber, three allow firing squad and three allow for hanging.
It is in this climate that the 57-year-old Robert Bolden fights for his life in court.
The Canadian government didn't find out about Bolden until 2012, six years into his confinement on death row.
Canada's approach, with the exception of a few years under Stephen Harper's Conservative government, has always been to fight for clemency from the death penalty, said Gar Pardy, a retired Canadian diplomat who has written about Canada's delivery of consular services to citizens abroad.
“We automatically went to bat for anybody on death row, anywhere in the world,” explained Pardy.
Multiple attempts have been made by the National Post in 2018, 2019 and 2020 to reach Bolden's lawyers. They have been unsuccessful. The U.S. Department of Justice and the Canadian government also declined to answer questions about Bolden or his case.
But reams of court papers reviewed by the Post reveal his untold story: the senseless crime, and a portrait of a person all too familiar among death-row inmates, formed by a childhood of abuse, addiction, assault and neglect.
It was Bolden who pulled the trigger during the failed bank robbery.
That he pulled it twice is what really mattered.
As the three men headed for the bank on Oct. 7, 2002, a security guard named Nathan Ley confronted Bolden. The two struggled, and Bolden shot Ley twice, once in the jaw and then, after taking a step back, in the head, killing him.
That second shot was the “execution shot,” prosecutor Steven Holtshouser said.
“Maybe we might not be here if he had just shot him once and Nathan Ley had died as a result of injury from that one shot, but the second shot makes this a death-penalty case,” Holtshouser argued.
At Bolden's trial, Holtshouser described Ley as a “shining light” in the community, a man who was near to proposing to his girlfriend and who wanted to become a police officer.
“Think of the positive way (Ley) would have impacted so many people's lives had Mr. Bolden not made the decision to end his,” argued Holtshouser, according to a court transcript. “Justice demands something more than life in prison. It demands death.”
The jury found Bolden guilty and sentenced him to die.
Mary Atwell, professor emeritus of criminal justice at Radford University in Virginia, who has done research on capital punishment, told the National Post the case falls far below the usual standard of capital cases.
“This is a garden-variety crime, you know, it's not anything you would be proud of, but it's certainly not the worst-of-the-worst either,” Atwell said.
Bolden's past isn't well known, but it's documented extensively in psychiatrists' reports and other legal documents in U.S. court records.
Bolden was born in 1963, in Stephenville, a town on the west coast of Newfoundland, south of Corner Brook. Today, its population is around 6,000.
Stella Decker, Bolden's mother, was a prostitute who worked with men stationed at the U.S. Air Force base in Stephenville. His father, probably a man named Curtis Roberts, was a soldier stationed there.
But Roberts wasn't part of young Robert's life. The father he ended up with was Lavale Bolden, another U.S. serviceman. When Robert was around two years old, Decker moved to St. Louis to be with Lavale.
In no way was it a healthy life. Lavale Bolden was a heroin addict. Decker was an alcoholic. Their relationship was “characterized by domestic violence, alcoholism, and addiction.”
Robert, a psychiatrist wrote, wanted badly to help his mother, but the best he could do to protect her from the beatings was “bite Lavale on the hand, the only part … he could reach as a small child.”
“Lavale's beating's of Stella were so severe that, even though they were living in the basement of the four-flat, the abuse could he heard throughout the entire building,” wrote one psychiatrist.
Those who ended up raising him, his great aunt and uncle Ethel and Elmer Clark, weren't much better.
“Aunt Ethel tried her best to raise Robert, but her advanced age made it difficult for her to raise a young boy. Uncle Elmer was a cantankerous alcoholic who verbally abused Robert and Stella, and physically abused Ethel,” the psychiatrist's report says.
Robert's attempts to escape his sad life failed. He moved to Michigan, where he spent time in prison for dealing drugs, even completing a drug treatment program. Throughout, he tried to care for his own kids, who spoke at trial of a caring father who took them fishing and encouraged them to get good grades.
“Robert's frantic attempt to take care of his own children is a manifestation of his borderline personality. Robert does not want to recreate, with his own children, what Lavale Bolden did to him as a child,” says the psychiatrist.
By the late 1990s, when Bolden and his kids moved back to St. Louis, what little support network he had was crumbling. Ethel and Elmer were dead, his mother was ill, and Lavale had remarried and wanted no relationship with Robert.
“As Robert's life stressors increased, exacerbating his mental illness, he spent a lot of his time in the basement of this house, smoking crack, drinking alcohol, and huffing turpentine when alcohol and crack were not available,” says the psychiatrist's report.
Leading up to the botched robbery, Bolden was sick, in and out of hospital — he'd been diabetic his whole life and had never been successful at controlling the disease. Days before the robbery, he learned he was going to be evicted.
While addiction, mental illness and abuse can be mitigating factors at trial and sentencing, the prosecutor, wasn't buying it.
“Robert Bolden did not kill Nathan Ley because of a troubled youth or problems at home,” Holtshouser said in his closing arguments. “He killed him as part of a robbery to get money. He didn't kill him because of diabetes. There is just no insulin at the bank. He was there for money.”
BOLDEN JUST SPOKE OF A BELIEF IN CHRIST AND FORGIVENESS OF SIN, AND IF HE TRULY BELIEVES THAT, HE SHOULD NOT FEAR HIS OWN DEATH ON THIS EARTH. HE SHOULD LOOK FORWARD TO THE TIME WHEN HE CAN FACE GOD, FACE MY SON, AND APOLOGIZE.,
— LINDA LEY
On Aug. 25, 2006, robert Bolden was sentenced to die.
Linda Ley, Nathan's mother, said it was a “just and fair sentence.”
“Mr. Bolden just spoke of a belief in Christ and forgiveness of sin, and if he truly believes that, he should not fear his own death on this Earth,” said Linda Ley. “He should look forward to the time when he can face God, face my son, and apologize.”
Most federal death row prisoners are housed at the federal penitentiary in Terre Haute, Indiana, also the home of the federal death chamber. Bolden, though, isn't. Because of his medical issues, in June 2016, Bolden was transferred to a special medical prison in Springfield, Missouri.
While he awaits appeals decisions in his fight against execution, he's also gone to court to get better access to books and sunlight, and fought to be allowed to have an MP3 player in his cell.
Bolden has won the ability to argue for an appeal based on three issues: whether the lack of notification regarding his citizenship was a violation of his constitutional rights; whether his trial counsel were “deficient” to the extent it violated his rights; and whether the u.S. “suppressed or withheld immigration records from Bolden in violation of his constitutional rights.”
These will be heard before an appellate court at some point; dates have not been set.
The gist of the argument is that the united States, upon arresting a foreign national, should have let the Canadian embassy know, to assist in his defence. The u.S. is a signatory to the Vienna Convention on Consular relations, which obliges a nation to allow those under arrest to contact their consulate for assistance.
Since this didn't happen, Canada's lawyers argue Bolden's defence in 2006 was impaired.
Mark Warren, a human rights researcher and legal consultant in Ontario, who has written instruction manuals for consular officials dealing with capital cases, says in many cases of Canadians sentenced to death abroad, the government doesn't “learn about the case until it's too late to intervene to prevent a death sentence.”
“This is a major problem. There are, of course, binding treaty obligations that require police in the united States to advise foreign nationals of their right to consular notification,” said Warren in an interview. “That treaty remains largely unobserved.”
Atwell agrees. “In all of the cases of the foreign nationals who have been executed … only one of them, I think, has had the opportunity to confer with his consulate before he was executed, or early in the process.”
There's another glaring issue, Atwell explained: In order to use an argument upon appeal, that argument has to be made at trial. So, in Bolden's case, since neither he nor his lawyers raised the issue of citizenship at trial, it becomes difficult to use it upon appeal.
“But this case is different because it's federal law enforcement and federal courts,” Atwell said.
Back in 2007, when Stephen Harper was prime minister, the Conservative government changed Canada's policy of automatically fighting for citizens facing execution abroad, to one that would consider the fairness of the justice system involved.
But in February 2016, then-foreign affairs minister for Canada Stéphane dion reversed that policy, saying in an interview with the National Post the death penalty “is not something that should be done in a civilized society.”
“In order to be able to maximize the possibility that you will get clemency for some you need to ask for clemency for all,” said dion.
While a welcome policy change for the two Canadians on death row in the united States, and the four facing execution in China, Canada hasn't always been successful in seeking clemency for the accused. But it has won in some notable cases.
In 1994, Glen Burns and Atif rafay murdered rafay's family in Washington state and fled to Canada before their arrest by the RCMP, which used the controversial “Mr. Big” tactic. Liberal Justice Minister Allan rock ordered them extradited, but he did not seek assurances they would be spared execution.
The case worked its way up to the Supreme Court of Canada, which ruled the two could only be extradited if they would not face the death penalty. That was secured, and the two were sentenced to three consecutive life sentences.
Canada is involved in Bolden's case. Lawyers retained by Canada have filed court documents in support of his appeals in recent years, which also argue what Canada might have done had the government been informed of his case back in 2002.
Citing privacy concerns, the Liberal government declined to elaborate on what it is presently doing to help Bolden.
While Bolden's prospects in the u.S. justice system remain uncertain, so does the future of federal death row. Joe Biden opposes the death penalty and has pledged to stop federal executions when he assumes the presidency.
Before then, more men and women are scheduled to die: Lisa Montgomery on Jan. 12; Cory Johnson, for killing seven drug-trade rivals, on Jan. 14; and dustin Higgs, convicted in the kidnapping and deaths of three women, on Jan. 15.