By Ruth Brown, Idaho Reports
On Monday, the Idaho Supreme Court heard arguments in the case of Gerald Pizzuto Jr., who narrowly avoided execution this summer.
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.
Pizzuto’s attorney debated a district court’s decision to dismiss his complaint asking the court to enjoin, or prohibit, his execution.
The Fourth Judicial District Court stated that among other issues, it did not have the jurisdiction to enjoin an execution, nor did it have jurisdiction over the rulemaking authority of the Idaho Department of Correction director, under Idaho code.
Pizzuto’s counsel, Jonah Horwitz, argued that when the Board of Correction drafted the execution procedures, approved by the director, it did not accept public input.
The proposed procedure would affect multiple members of the public, not just the person who faces execution and it’s not an internal procedure, Horwitz said. The procedure addresses access for the media, visitors, witnesses for the victim and for the defendant, chaplains, and a variety of other parties.
Horwitz questioned whether IDOC Director Josh Tewalt has rulemaking authority and whether “protocol” and “procedures” should be interpreted as “rule.” He questioned whether the department had adopted the procedures in compliance with the Idaho Administrative Procedure Act.
Tewalt signed the most recent IDOC execution procedure on March 30.
Ken Jorgensen, of the Idaho Attorney General’s Office, argued that IDOC and Tewalt are not required to accept public comment on execution procedure and the Legislature has made that clear under Idaho code.
Justice Robyn Brody questioned Jorgensen on the execution procedure document.
“When you look at the document that was actually promulgated, everything about it looks and smells like administrative rule making,” she said. “Can we really divorce ourselves from the product itself that was put together … that was approved by the director here?”
Jorgensen responded, saying what the document looks like does not change the director’s authority under law.
“Any mere superficial parallels to what the director did in adopting these protocols to rulemaking is ultimately not controlling,” he said. “What is ultimately controlling is the language of the statute.”
Justice Gregory Moeller questioned Jorgensen about the number of people the protocols impact, outside of the defendant. Moeller said the public impacted by the protocol includes the media, the county sheriff, victims, and other people allowed into executions.
“Yet, they didn’t have any involvement in the construction of this, that at least transparently we can tell,” Moeller said. “Should that be a concern?”
Jorgensen said no, and that if the press, for example, wanted to raise an issue with the policy, the press should bring that claim, not Pizzuto.
The Idaho Supreme Court did not issue an opinion from the bench on Monday but will issue a written opinion. There is no statutory deadline on when the court must release an opinion. Pizzuto also has two pending cases in federal court regarding issues around the potential execution.
The Idaho Commission of Pardons and Parole granted Pizzuto a commutation hearing this summer. That hearing is scheduled for Nov. 30.
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.
At the Nov. 30 hearing, Pizzuto’s defense will likely ask that he be allowed to live out the rest of his natural life in prison, rather than face execution. Pizzuto has terminal cancer, several serious medical conditions and he is not expected to live much longer.
His attorneys are also expected to outline the physical, sexual and verbal abuse that Pizzuto endured as a child, factors that they believe are mitigating circumstances and further reason he should be granted mercy.
The Commission issues a recommendation to Gov. Brad Little, and Little will make the ultimate decision on whether to grant Pizzuto a commutation, if the commission recommends it. The governor cannot constitutionally grant a commutation without the commission’s recommendation. If the commission does not grant Pizzuto a commutation, the state will likely seek the issuance of another death warrant.
The execution procedure in Idaho is published on the IDOC website.