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Idaho Supreme Court rules for governor’s authority on clemency decision in execution case

Aug. 23, 2022 Updated Tue., Aug. 23, 2022 at 8:44 p.m.

Gov. Brad Little at a press conference in March 2020 on COVID-19.  (Darin Oswald/Idaho Statesman)
Gov. Brad Little at a press conference in March 2020 on COVID-19. (Darin Oswald/Idaho Statesman)
By Kevin Fixler Idaho Statesman

BOISE – The Idaho Supreme Court ruled unanimously Tuesday that the governor maintains the authority to reject a clemency decision to reduce a prisoner’s sentence by the state’s parole board, in turn restarting a longtime death row inmate’s execution process.

In a 5-0 decision, the state’s highest court reversed a district court’s ruling that prevented the issuance of a death warrant for convicted murderer Gerald Pizzuto. In February, Judge Jay Gaskill, of Nez Perce County, sided with Pizzuto, 66, and his attorneys, agreeing that the Idaho Constitution never granted such a power to the governor.

Instead, Gaskill ruled that authority remains with the Idaho Commissions of Pardons and Parole, which is appointed by the governor. In December, the parole board granted Pizzuto, who is terminally ill, a reduced sentence of life in prison without the chance of parole, which Gov. Brad Little immediately denied. Pizzuto’s attorneys with the nonprofit Federal Defender Services of Idaho then filed suit.

In response to Pizzuto’s legal victory in Idaho court, the state, represented by the Idaho attorney general’s office and backed by the governor’s office, appealed the case to the state Supreme Court, and arguments were held in June.

In the majority opinion, penned by Justice Gregory Moeller and issued Tuesday, the Supreme Court stated that a constitutional amendment passed by Idaho voters in 1986 affirmed the governor’s power to deny clemency recommendations, after the Legislature sought to limit the parole board’s power and grant the governor that authority. Voters at that time approved the ballot measure with more than 68% approval.

“While the commutation power remains wholly vested in the executive branch through the Commission (of Pardons and Parole), the 1986 amendment to the constitution is clear that the Legislature now determines how that power operates,” the court’s decision reads. “This allowed the Legislature to include an additional requirement of gubernatorial approval for the commutation of capital offenses.”

The Idaho Statesman has reached out to the governor’s office for comment. The attorney general’s office, through spokesperson Scott Graf, declined to comment, citing an ongoing case.

With the ruling, the attorney general’s office is immediately seeking a death warrant be reissued for Pizzuto, which would signal his execution by lethal injection in the next 30 days. The attorney general’s office made the request in its appeal filings, as well as during oral arguments before the Idaho Supreme Court in June.

Pizzuto’s attorneys said in a statement that they are “obviously disappointed and devastated” by the court’s decision.

“We hope the governor will take a closer look at all the reasons the Idaho Commission of Pardons and Parole issued a rare recommendation of clemency for Mr. Pizzuto,” said Deborah Czuba, supervising attorney of the nonprofit’s unit that oversees death penalty cases. “Any aggressive pursuit of a death warrant at this point for Mr. Pizzuto would not only be barbaric, but also a clear waste of time, resources, and taxpayer money. We believe the Commission of Pardons and Parole made a compassionate and reasoned decision, and that there is still time for Gov. Little to take the wise and moral action to allow Mr. Pizzuto to die a natural death in prison.”

Pizzuto was convicted in 1986 of the summer 1985 slayings of Berta Herndon, 58, and her nephew, Del Herndon, 37, at a remote Idaho County cabin north of McCall. Pizzuto and two accomplices were in the midst of robbing the Herndons when Pizzuto bludgeoned the two family members to death with a hammer, his co-conspirators testified during trial in exchange for lighter sentences. Pizzuto was convicted and sentenced to death, and he has remained on Idaho death row for more than 36 years.

Idaho County Prosecutor Kirk MacGregor told the Statesman by email that despite Pizzuto’s crimes and conviction each taking place in his county – which would require he seek a new death warrant – that his office is uninvolved, and the attorney general’s office is handling the case.

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