9th Circuit Court of Appeals affirms district court decision in death row case

The Idaho Department of Correction’s execution chamber is at the Idaho Maximum Security Institution outside Boise. (Courtesy of IDOC)

By Ruth Brown, Idaho Reports

The U.S. Court of Appeals for the 9th Circuit upheld a decision Wednesday from Idaho’s district court regarding Thomas Creech, a man on Idaho’s death row. 

Creech, 71, is the longest-serving man on Idaho’s death row and first came to death row in 1983. Creech’s death sentence stems from the murder of David Dale Jensen. At the time of Jensen’s death, Creech had four prior murder convictions.

Creech’s attorneys appealed a decision from the district court regarding ineffective counsel, among other claims. 

According to the court, “In 1981, while serving two life sentences for multiple convictions for first-degree murder, Creech beat a fellow inmate to death. After pleading guilty, he was sentenced to death in Idaho state court. Creech obtained federal habeas relief with respect to his sentence, and was resentenced to death in 1995. In a second petition, Creech thereafter unsuccessfully sought federal habeas relief in the district court.”

Creech’s attorneys argued to the U.S. Court of Appeals for the 9th Circuit that his prior attorneys provided ineffective assistance of counsel at his 1995 resentencing. They also argued that the Idaho courts unconstitutionally prevented him from withdrawing his guilty plea.

He claims his prior attorney should have moved to withdraw his guilty plea on the grounds that Creech was “incompetent.” He claims his attorney should have tested Creech for brain damage, considered his evaluation, and considered his suicide attempt the day before appearing in court to change his guilty plea.

Creech argued that under the case of Magwood v. Patterson, claims in his second federal habeas petition should be decided on the merits. 

Creech also argued that the court “should remand this case for the district court to determine whether the duration of his confinement while awaiting execution constitutes cruel and unusual punishment under the Eighth Amendment,” according to the opinion, citing Lackey v. Texas.

Ultimately, the appellate court agreed with the district court’s decision to deny Creech’s second amended habeas petition. The court denied Creech’s motion to file replacement or supplemental briefs.

Idaho Reports reached out to Creech’s defense on Thursday for comment but did not receive an immediate response. The Idaho Attorney General’s Office declined to comment on pending litigation.

The Idaho Department of Correction first took Creech into custody on March 25, 1976, more than 46 years ago.

Recent issues in Idaho

The death penalty in Idaho gained attention this year when another man on death row, Gerald Pizzuto Jr., narrowly avoided execution.

The Idaho Legislature passed a piece of legislation this year allowing the Idaho Department of Correction to hide the name of the supplier of chemicals used in lethal injection. Lawmakers said the legislation became necessary because IDOC is unable to obtain the chemicals if they couldn’t guarantee anonymity to the supplier.

When debating the legislation, Creech’s name came up several times as a case nearing execution. Lethal injection is the only legal form of execution in Idaho.

Gov. Brad Little also denied a recommendation for commutation for Pizzuto, granted by the Idaho Commission of Pardons and Parole last year. Pizzuto appealed the decision, arguing that Little doesn’t have the authority to deny the recommendation. The Idaho Supreme Court heard arguments on that in June but hasn’t ruled on it yet.


<strong>Ruth Brown</strong> | Producer
Ruth Brown | Producer

Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.

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