Federal judge tossed from Idaho death row prisoner appeal over friendship with prosecutor
A federal judge in Idaho was removed from a case brought by death row prisoner Thomas Creech over her unwillingness to recuse herself based on a longstanding friendship with Ada County Prosecutor Jan Bennetts, who is named in Creech’s lawsuit.
A three-judge panel with the 9th U.S. Circuit Court of Appeals unanimously ruled Wednesday for Creech in his effort to have U.S. District Judge Amanda Brailsford dismissed from his case. On the same day, Creech was scheduled to be executed next month.
The judges ordered Creech’s case back to the District of Idaho for reassignment of a new federal judge.
“The facts in this case leave us firmly convinced that the district court’s failure to recuse herself was based on a clear error of law,” read the opinion penned by U.S. Circuit Judge Jay Bybee. “We hold that Judge Brailsford committed a clear abuse of discretion by failing to recuse herself.”
Brailsford declined a request for comment from the Idaho Statesman through her judicial assistant, Anna Goitiandia.
The ruling from the 9th U.S. Circuit Court of Appeals was first reported by Idaho Public Television.
Creech, 74, at almost a half-century of incarceration, is Idaho’s longest-serving death row prisoner.
It is not clear when Creech’s case may be reassigned or whether it might delay his execution, now scheduled for Nov. 13. Stephen Kenyon, the District of Idaho’s clerk of the courts, could not offer a specific timeline Thursday, and Creech’s attorneys with the Federal Defender Services of Idaho declined to comment.
Brailsford ruled earlier in Creech’s case against his attorneys’ request for an injunction to prevent their client’s execution, and later refused to recuse herself over a conflict of interest stemming from her 30-year relationship with Bennetts. They clerked for the same 9th U.S. Circuit Court of Appeals judge from 1993 to 1994, and developed a friendship that they’ve maintained through the years and acknowledged publicly.
Bennetts, for example, was one of two speakers at Brailsford’s swearing in as a judge on the Idaho Court of Appeals in 2019, the federal appeals court filing read. At that event, Brailsford called Bennetts a “dear friend” and labeled them “kindred spirits.” Brailsford also once recused herself from a case on the Idaho Court of Appeals in which Bennetts was sued, Creech’s attorneys noted in their argument.
“The nature of Judge Brailsford’s friendship with Bennetts weighs in favor of recusal,” Bybee wrote in his opinion. “A reasonable observer could question Judge Brailsford’s impartiality in a case that may challenge Bennetts’ professional and ethical reputation.”
Bennetts is currently running for re-election. A spokesperson for her office said in a statement to the Statesman that the appointment of a different judge to Creech’s case does not change the facts that his attorneys previously argued before Brailsford.
“The facts support Judge Brailsford’s original decision to dismiss Creech’s claims,” said Emily Lowe, spokesperson for the Ada County Prosecutor’s Office. “We’re confident that the outcome will be the same in front of a different judge.”
Creech alleges prosecutorial misconduct
Creech was up for review in January at the Idaho Commission of Pardons and Parole over whether to reduce his death sentence to life in prison. The Ada County Prosecutor’s Office opposed granting him commutation, arguing that Creech was responsible not just for the five murders – including three in Idaho – for which he was convicted, but at least six others across the West.
With Bennetts in attendance, Ada County Deputy Prosecutor Jill Longhurst alleged to the parole board that Creech was guilty of the 50-year-old cold case killing of Daniel A. Walker in San Bernardino County, California, in October 1974. Longhurst offered no specific evidence, and has since retired from the office.
Creech has never been charged in connection with Walker’s death.
The parole board deadlocked in a 3-3 vote on commutation, which upheld Creech’s death sentence. The next day, Bennetts’ office sought Creech’s execution by lethal injection on Feb. 28. On that day, executioners could not find a suitable vein to establish an IV, and called off the planned execution. Bennetts attended in person as a state witness; she never has responded to requests from the Statesman for comment about the experience.
Creech denied any involvement in Walker’s shooting death in a phone interview in June with the Idaho Statesman.
“I don’t have nothing to hide, nothing that I’m not willing to talk about,” Creech said from prison. “I don’t know where they got that. … I had no knowledge of it.”
Before prison officials failed to execute Creech in February, his attorneys asked Brailsford to issue an injunction to preclude the execution from taking place. They alleged in their lawsuit that Bennetts and her office committed prosecutorial misconduct by misleading the parole board. Brailsford declined to hold a hearing for oral arguments and denied the request.
Then, in May, Creech’s attorneys asked that Brailsford recuse herself, which she refused to do.
“While my relationship with Ms. Bennetts began in 1993, my personal interactions with her since 1994 have been very limited and professional rather than social in nature,” Brailsford wrote in her denial. “… I conclude that a reasonable person with knowledge of all the facts of my relationship with Ms. Bennetts would not either conclude my impartiality might be reasonably questioned or perceive a significant risk that I would resolve the case on a basis other than the merits.”
Brailsford later declined the 9th Circuit’s invitation to respond to the recusal appeal filed by Creech’s attorneys.
“My analysis of the issue remains unchanged,” she wrote in a filing, and stated that she did not believe an “answer to his petition is warranted.”
Ashley Dowell, executive director of the Idaho Commission of Pardons and Parole, which also is named in Creech’s lawsuit, told the Statesman by email Thursday that she was unaware of any upcoming hearings regarding Creech, and declined further comment.
Brailsford, an appointee of President Joe Biden, was unanimously confirmed by the U.S. Senate to the federal bench in May 2023. She was nominated for the position by Idaho U.S. Sens. Mike Crapo and Jim Risch.
“Judge Brailsford represents the best our state has to offer,” Crapo said at Brailsford’s March 2023 nomination hearing before the Senate Judiciary Committee. “When I reviewed candidates with Sen. Risch, Judge Brailsford stood out as one who would adjudicate cases according to the Constitution and the law consistent with established precedent.”
Neither Crapo’s nor Risch’s offices responded to requests for comment from the Statesman.