By Ruth Brown, Idaho Report 

While Thomas Creech is 23 days away from his execution, Deputy Attorney General LaMont Anderson on Monday deemed arguments before the Idaho Supreme Court a last resort, comparing them to a hail Mary pass in a football game.  

Creech, 73, has been on death row since 1983 for the beating death of fellow inmate David Jensen in 1981. Jensen is the fifth murder conviction on Creech’s record.   

But Creech’s defense attorney Jonah Horwitz of the Federal Defenders Office stressed that if Creech’s case moves forward, Idaho will be the last state in the country to execute a person sentenced to death solely by a judge. 

Creech was last sentenced in 1995 by a single judge. Today, a jury must be in unanimous agreement in determining whether a crime is death penalty eligible, a change that came after Creech’s sentencing. 

Anderson argued that Horwitz’s claim was filed one day after the death warrant had been filed, again comparing it to a hail Mary throw in football. 

Justice Gregory Moeller interrupted Anderson’s argument, saying “Aren’t we worried about the legality, and not the appearance of desperation, which is really what a hail Mary is?” 

“This is a claim that could have been known or reasonably known decades ago,” Anderson responded, arguing that the claim is not legal. 

Horwitz asked that the case be remanded back to the lower court. 

The Idaho Supreme Court justices also heard arguments from Garth McCarty of the State Appellate Public Defender’s Office, regarding Creech receiving ineffective counsel assistance in postconviction cases.  

McCarty’s claim stating that Creech’s case should be remanded back to the district court for arguments around ineffective assistance by former legal counsel revolves around a 2022 U.S. Supreme Court opinion in Shinn v Ramirez.  

“The question presented in this case is did the U.S. Supreme Court opinion in Shinn v Ramirez open a window for Mr. Creech to file a new petition in state court within 42 days of that decision,” McCarty said. His office believes the opinion was a triggering event for capital cases. 

Anderson argued there is law that states the claims made must narrow in scope if filed by a defendant after their conviction. 

“There has to be an end to capital litigation,” said Anderson. “Capital litigation doesn’t mean forever litigation.” 

Both McCarty and Horwitz asked the court for a stay of Creech’s execution, which is currently scheduled for Feb. 28, while the appeal process is pending. Anderson opposed any stay of execution, arguing there must be an end to capital litigation.  

Retired Supreme Court Justice Roger Burdick sat in on the cases as Justice Colleen Zahn, a former deputy attorney general, recused herself from the case. 

The Idaho Commission of Pardons and Parole denied Creech a request for clemency on Jan. 29 in a 3-3 vote. The deadlock vote, because one commissioner recused himself, means the commutation request could not move forward. The following day, District Judge Jason Scott signed a new death warrant for Creech. 

On Jan. 31, Horwitz also wrote a letter to Gov. Brad Little, asking him to postpone the execution in an act of fairness, due to the tie vote. Had the seventh Commissioner of Pardons and Parole been present, the recommendation may have been different. Little didn’t publicly respond to that letter, but on Jan. 29 issued a statement saying, “As governor, I have zero intention of taking any action that would halt or delay Creech’s execution.”  

At the time of Jensen’s death, Creech was already incarcerated for the 1974 murders of Edward T. Arnold and John Wayne Bradford in Valley County. Creech also had prior convictions related to earlier murders in Oregon and California.  

The Idaho Supreme Court does not have a deadline to issue a decision, but the stay of execution must be made before Feb. 28.  

The Idaho Department of Correction confirmed to Idaho Reports it does have the necessary chemicals to carry out an execution by lethal injection. 

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