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US judge rejects inmates’ lawsuit on Idaho execution plans

UPDATED: Wed., Nov. 18, 2020

By Rebecca Boone Associated Press

BOISE – A federal judge has thrown out a lawsuit from two death row inmates seeking more information about Idaho’s execution plans.

U.S. District Judge David Nye ruled Tuesday that because Gerald Ross Pizzuto Jr. and Thomas Eugene Creech both have appeals pending in their criminal cases, there’s no guarantee they’ll ever face execution, meaning they don’t yet have standing to sue over the details of the state’s execution plans.

“The ultimate question of whether the two men will even be executed remains an undetermined and open question, rendering the claims in this case speculative and abstract,” Nye wrote.

Still, both men can sue again if they lose their criminal cases and are issued death warrants.

The men, both represented by the Federal Defender Services of Idaho, sued the state in March over what they said was a lack of information about how prison officials planned to execute them. They said the lack of information violated their rights in several ways, in part because withholding the information prevents them from seeking legal remedies if the methods are likely to lead to botched lethal injection attempts.

The men noted that in the two most recent executions, state officials didn’t publish updated versions of their plans until just weeks before they were scheduled to occur.

“We are disappointed in the Court’s ruling and are evaluating our options,” Jonah Horwitz, the attorney representing Pizzuto and Creech, wrote in an email to the Associated Press.

Idaho Department of Correction spokesman Jeff Ray declined to comment on the case.

State officials have long sought to keep information about lethal injection drugs and their source secret. Prison officials maintain that releasing the source of execution drugs would make them harder for the state to obtain in the future.

But critics say the information should be released so the public can make its own decisions about whether the state is appropriately carrying out capital punishment. The Idaho Supreme Court is expected to rule soon in a separate lawsuit seeking information about the state’s lethal injection drugs brought by University of Idaho professor Aliza Cover and the American Civil Liberties Union of Idaho.

Pizzuto was sent to Idaho’s death row in 1986 after being convicted of murder for the 1985 beating deaths of Berta Herndon, 58, and her nephew Del Herndon, 37, at a remote Idaho County cabin where they were prospecting. Prosecutors said Pizzuto, armed with a .22 caliber rifle, bound the victims’ wrists and legs, stole their money, then bludgeoned them both and shot Del Herndon.

Thomas Creech was serving two life sentences for a double murder in Valley County when law enforcement officers said he beat fellow inmate David Dale Jensen to death with a sock full of batteries. He’s been on death row since 1983.

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