IDOC requests judgement in Pizzuto case as execution date looms

This is the execution chamber, located at the Idaho Maximum Security Institution, outside of Boise. (Photo courtesy of IDOC)

By Ruth Brown, Idaho Reports

Attorneys filed a variety of legal actions in both federal court and at the Idaho Supreme Court in recent months while Gerald Pizzuto Jr. awaits a decision on his potential execution.

Pizzuto, 65, has been on death row in Idaho for more than 35 years after he was convicted of two counts of first-degree murder in Idaho County.

The Commission of Pardons and Parole granted Pizzuto a commutation hearing this summer. It’s currently scheduled for Nov. 30. 

Idaho Reports did send an inquiry about the commutation scheduling to the Commission on Wednesday. 

On Monday, attorneys for the Idaho Department of Correction filed a motion for summary judgement in federal court, in response to Pizzuto’s challenge on IDOC’s standard operating procedure limiting the persons permitted in the execution chamber during an execution. 

Pizzuto has asked to have a spiritual advisor in the execution chamber with him. IDOC’s procedure allows the spiritual advisor to only be in the witness area during the execution, but would allow Pizzuto visits with the advisor in the days leading up to the execution.

Pizzuto claims his religious rights would be violated, stating his spiritual beliefs require his spiritual advisor, identified as Emil Kolar, to maintain physical contact with him until he dies and share an audible prayer with him moments before the execution commences. 

IDOC asked the court to dismiss Pizzuto’s claim because he did not “exhaust the prison administrative grievance process” before filing a lawsuit, and he “failed to plead a plausible cause of action for a violation of a federally secured right.” 

A judgement had not been issued, as of Wednesday morning.

Pizzuto was convicted in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall. His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime.

Another federal complaint filed in September by Pizzuto’s attorneys takes issue with the type of drugs, or chemicals, that will be used in the execution. In prior executions, the state has used compounding pharmacies to obtain the drugs used  for lethal injection execution. Pizzuto’s attorneys stress the FDA does not verify the safety or effectiveness of drugs prepared by compounding pharmacies.

It remains unclear where IDOC will or has obtained the drugs or chemicals it plans to use in Pizzuto’s potential execution.

On Nov. 1, the Idaho Supreme Court is set to hear arguments in a case in which Pizzuto is appealing the District Court’s decision to dismiss his complaint, asking the court to “enjoin,” or prohibit, his execution. 

The District Court stated that among other issues, it did not have the jurisdiction to enjoin an execution, nor did it have rulemaking authority to the IDOC director under Idaho code

The execution procedure in Idaho is published on the IDOC website

The next filing deadline in the Supreme Court case is Oct. 8. 

The Governor’s Office confirmed Wednesday that it had not yet received any requests for clemency, or pleas for mercy, from Pizzuto. 

How commutation works 

The Commission of Pardons and Parole will hear Pizzuto’s case in November. The hearing is open to the public and the determination during that hearing will be made by a majority vote from the seven-person commission

The Nov. 30 hearing date was listed in a complaint drafted by Pizzuto’s attorneys. 

That determination will be a recommendation to the governor and is subject to Gov. Brad Little’s final approval or disapproval. 

Any commutation recommendation not approved by the governor within 30 days of the Commission’s recommendation is deemed denied.

Until then, Pizzuto’s execution remains on hold. 

“If Mr. Pizzuto’s petition for commutation is denied, he anticipates that the State will immediately secure another death warrant, which will set a date for his execution within the following 30 days,” according to the September complaint from his attorneys.

Pizzuto is not asking for release, only that he be allowed to live out the rest of his natural life in prison. 

Pizzuto’s attorneys argue that their client is already terminally ill and is not a danger to the public. He also endured significant physical, sexual and emotional abuse as a child, impacting his life as an adult. 

Idaho Reports will follow the November hearing.

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