By Ruth Brown, Idaho Reports
The Idaho Commission of Pardons and Parole voted 4-3 to recommend commutation and grant a plea for mercy from Gerald Pizzuto Jr., who’s been on death row for more than 35 years.
However, Gov. Brad Little denied the commission’s recommendation, calling Pizzuto’s 1985 crimes brutal and senseless.
The commission held a commutation hearing on Nov. 30 for Pizzuto, 65, where members heard arguments from his attorneys and family, as well as the victims’ family. A copy of the commission’s decision was published Thursday, which required a majority vote from the seven members.
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.
A copy of the decision states that the majority of the members supported commuting Pizzuto’s two death sentences to sentences of life without the possibility of parole.
The commission issued a recommendation to Gov. Brad Little, who held the ultimate decision on whether to grant Pizzuto a commutation. The governor cannot constitutionally grant a commutation without the commission’s recommendation.
Little wrote, “The severity of Pizzuto’s brutal, senseless and indiscriminate killing spree strongly warrants against commutation. Therefore, I respectfully deny the Commission’s recommendation so that the lawful and just sentences for the murders of Berta and Del can be fully carried out as ordered by the court.”
Pizzuto’s attorneys said in court filings that if the commutation is denied, they expect another death warrant will be issued in his case.
The four members of the commission who voted for the commutation stated it was not because they doubted his guilt, or the horrific nature of his crimes.
“This recommendation is one of mercy due to Mr. Pizzuto’s current medical condition and evidence of his decreased intellectual functioning,” the members wrote in the recommendation to the governor.
They expressed concerns about Pizzuto’s intellectual abilities. Pizzuto does not meet the standards set by the Supreme Court case Atkins v. Virginia, regarding executions of people with “mental retardation,” but said the Commission is not bound by that standard. The three members of the commission who voted against the commutation said Pizzuto’s medical condition should not outweigh the initial sentence, and they expressed concern about responsibility for the Herndons’ deaths.
“The cruel and heinous nature of Mr. Pizzuto’s crimes and his lack of responsibility, accountability and credibility warrant imposition of the original sentence imposed in and the execution of Mr. Pizzuto. … That sentence was justified at the time of sentencing and is justified today,” the minority wrote.
The Commission of Pardons and Parole redacted the names of which commissioners voted in favor of and against the commutation.
Many of Pizzuto’s arguments at the November hearing revolved around the fact that he is already terminally ill and is not expected to live much longer. He has advanced bladder cancer and a heart condition. His attorneys asked that Pizzuto live out the rest of his natural life in prison. His defense also argued that he is intellecturally disabled and endured severe emotional, physical and sexual abuse as a child, which caused brain damage.
The Idaho Attorney General’s Office argued in November that Pizzuto’s death sentence has already been reviewed by state and federal courts more times than any other death sentence case in Idaho. The state also outlined the brutality of the 1985 crimes and Pizzuto’s criminal history.
The defense responds
Deborah Czuba, Supervising Attorney for the Capital Habeas Unit of the Federal Defender Services of Idaho, issued the following statement Thursday evening:
“We are devastated and heartbroken that the Governor, showing no mercy whatsoever, so casually and quickly rejected the Commission’s well-reasoned and thoughtful recommendation that Mr. Pizzuto deserves clemency.
“We had hoped that the Governor would follow the lead of the Commissioners, and commit Idaho to a higher ideal by sparing Mr. Pizzuto an unnecessary execution based on his impending natural death from terminal disease and his deteriorating mind.
“We are grateful for the hard work and thoughtfulness of the Commissioners who listened closely to all sides, and poured over piles of evidence before reaching their decision.
“We stand by our belief that Mr. Pizzuto deserves clemency. He is riddled with cancer, heart disease, diabetes, and other serious health conditions that are expected to take his life at any moment. He suffers from developmental disabilities and brain injury. His childhood was stolen by unimaginable evil and savagery that broke him inside-out.
“Mr. Pizzuto has been punished and in pain nearly every day of his miserable life — more than 35 years of it wasting away in an isolated cell on death row. Mercy is justified for the crippled, dying man he is now, and a long time coming for the unloved, tortured boy who fell through the cracks.
“Mr. Pizzuto’s team will continue to pursue all other avenues for preventing the purely vindictive and wasteful execution of a terminally ill old man.”
Pizzuto’s attorneys went before the Idaho Supreme Court on Nov. 1 and took issue with the Idaho Department of Correction’s execution procedure, but an opinion from the court had not yet been issued in that case as of Dec. 30.
The defense asked the high court to rule on the district court’s decision to dismiss a complaint asking the court to enjoin, or prohibit, Pizzuto’s execution.
There are also pending federal cases involving Pizzuto.
One federal complaint filed this year 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.
The last executions conducted in Idaho were those of Paul Ezra Rhoades in November 2011 and Richard Leavitt in June 2012.
On Jan. 5, a hearing in Pizzuto’s case was scheduled by Idaho District Judge Jay Gaskill. As of roughly 10:30 a.m., a new death warrant has not been issued and Pizzuto remains in IDOC custody. Pizzuto’s next court hearing is scheduled for 3 p.m. on Jan. 20.
Editor’s note: Updated Jan. 5 at 10:30 a. m.