By Ruth Brown, Idaho Reports
The Idaho Attorney General’s Office hopes to appeal a March decision from Idaho U.S. District Court Judge B. Lynn Winmill that requires the Idaho Department of Corrections to disclose some information about where it recently obtained execution chemicals.
Gerald Pizzuto Jr. filed a lawsuit against IDOC in 2021, asking the state not to execute him with pentobarbital due to his multiple medical conditions. He claimed it would cause severe pain and constitute cruel and unusual punishment.
On Monday, the state filed a request to stay enforcement of Winmill’s order while appealing the decision to Ninth Circuit Court of Appeals. Attorneys argue disclosing any information about the drug supplier impedes the ability to carry out lawful executions.
“It is imperative to review Pizzuto’s discovery requests as a whole. Pizzuto has propounded hundreds of discovery requests; some of the requests ask for IDOC’s source on their face, and others are more discrete by asking for collateral information. Even the requests asking for collateral information, however, provide Pizzuto or another interested party the ability to uncover the source’s identity,” attorneys for the state wrote in the motion for a stay of enforcement.
The state had to call off the execution of Thomas Creech in February. The source of the chemicals IDOC planned to use in Creech’s execution is still unknown.
While IDOC is not be required to name the execution chemical supplier, the department was required to supply some additional information requested by Pizzuto’s attorneys, per Winmill’s order in March.
The federal court agreed to grant Pizzuto’s request that IDOC disclose the date on which the execution drugs were obtained and supply a purchase order with a date to Pizzuto. The judge also agreed to grant Pizzuto’s request asking about the geographic origin of the execution chemicals and whether they were obtained in the United States or a foreign country and if the chemicals were imported.
Winmill also granted release of information on if the chemicals came from a “veterinary source” or a hospital, and whether the drugs were sold by a “wholesaler/distributer” or a pharmacy. IDOC must also “to admit or deny that the execution drugs were manufactured by Akorn, a now-bankrupt pharmaceutical company,” per Pizzuto’s request.
If IDOC fulfills the order from Winmill, that information would become public record.
In 2022, the Legislature passed a law granting anonymity to execution chemical suppliers, after it became harder for IDOC to get the needed chemicals.
“Further, being that this case is concerned with the death penalty, it receives heightened publicity and is of interest to individuals/entities throughout the country—including anti-death penalty advocacy groups and the media,” attorneys wrote in the Monday request.
Pizzuto’s execution has been stayed since March 9, 2023, while litigation continues.
Pizzuto has been on Idaho’s death row since 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.
“If the Court declines to enter a stay pending appeal, Defendants will be forced to divulge information which will impede IDOC’s ability to carry out executions because IDOC will not be able to obtain the necessary chemicals,” the request states.
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.