Updated at 5:50 pm Nov. 22.
By Ruth Brown, Idaho Reports
Idaho County District Court Judge Jay Gaskill denied a request to stay Gerald Pizzuto’s scheduled execution after hearing arguments on Tuesday morning.
Gaskill issued a written order and opinion Tuesday afternoon, just hours after the hearing. Pizzuto still has legal pleas pending to halt the execution before two separate federal judges.
The Idaho Department of Correction scheduled Pizzuto’s execution for Dec. 15, after Gaskill signed a death warrant for Pizzuto and issued the order on Nov. 16. The execution date was scheduled despite IDOC not yet having the chemicals necessary to carry out a lethal injection.
In his order, Gaskill said he is constrained by Idaho Code and cannot issue a stay, but went on to mention this doesn’t prevent the US Supreme Court from postponing the execution.
Pizzuto, 66, remains on death row after being 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.
Pizzuto is terminally ill and has a pending case in federal court revolving around Pizzuto’s opposition to the chemicals being used, and the lack of transparency around the chemicals, in his execution.
THE FEDERAL CASES
In one federal court case, Pizzuto’s attorneys filed a motion on Monday asking a judge for a preliminary injunction and to grant a stay of execution for at least six months.
The preliminary injunction request asks the court to prohibit IDOC from executing Pizzuto until it has amended execution protocol and administrative regulation on executions.
In motions, defense attorneys focused on Pizzuto’s multiple medical conditions, including terminal bladder cancer, diabetes and heart disease, as well as their concerns about how the execution chemicals may interact with the medicine he is currently taking for his medical conditions.
In one motion, attorneys wrote the “presumed use of pentobarbital at the execution will result in a torturous death in violation of the Eighth Amendment.” The U.S. Constiution’s Eighth Amendment prohibits the use of cruel and unusual punishments.
On Tuesday, Pizzuto’s attorneys filed a federal motion for preliminary injunction taking issue with the likelihood of a botched execution due to his medical concerns. In the motion, defense attorneys pointed out that in the last three years, Pizzuto has been prescribed at least 42 different drugs.
In earlier statements, the defense also pointed to the timing of the pending execution, scheduled to take place between two major holidays, as an obstacle for Pizzuto’s defense. The attorneys argued in a Nov. 21 press release that some experts, witnesses, and members of the legal team may not be able to rearrange both work and holiday plans to travel to Idaho.
“It is simply not feasible for them all to fly to Boise at the drop of a hat occasioned by the Attorney General’s rush to obtain a death warrant,” the defense said in the plea for a stay. “An administrative stay would provide everyone much-needed leeway so that a full and fair in-person evidentiary hearing can be scheduled and all of the key witnesses can testify in the most effective fashion possible.”
The defense also cited in filings an email from IDOC Director Josh Tewalt concerning the procurement of lethal injection chemicals.
“I’ve informed the Board of Correction, the Governor’s Office and the Attorney General’s Office that IDOC is not in possession of the chemicals necessary to carry out an execution by lethal injection,” Tewalt wrote on Nov. 16. “Our efforts to lawfully source chemicals are ongoing but have been unsuccessful to this point.”
The Idaho Legislature passed a law in 2022 granting anonymity to any manufacturer or supplier that supplied chemicals to the state. IDOC officials previously said that it has been unable to obtain lethal injection chemicals due to publicity concerns from suppliers. It was unclear as of Tuesday morning whether IDOC has obtained the chemicals it plans to use in Pizzuto’s executions. In a Nov. 16 press release, IDOC said it would not comment further on the scheduled execution, citing ongoing litigation.
Pizzuto has appealed his case to every level of court in Idaho, most recently to the Idaho Supreme Court, which did not side with him.
Last year, the Idaho Commission of Pardons and Parole recommended the governor grant Pizzuto a commutation, which would have changed his sentence to life without parole. Gov. Brad Little denied the recommendation in December 2021.