As execution date nears, Pizzuto again asks Idaho judge for stay

Idaho Department of Correction scheduled death row inmate’s execution for Dec. 15, but defense plans to appeal case to U.S. Supreme Court

By: - November 22, 2022 2:06 pm
execution chamber at the Idaho Maximum Security Institution

The execution chamber at the Idaho Maximum Security Institution south of Boise. (Courtesy of IDOC)

This story first appeared on Idaho Reports on Nov. 22, 2022.

The execution date set for Gerald Pizzuto Jr. is now less than a month away, and defense attorneys have again asked a judge to postpone the execution.

On Tuesday, Idaho County District Court Judge Jay Gaskill heard brief arguments on the request for a stay but did not make a decision.

The defense hopes to appeal to the U.S. Supreme Court and wants Pizzuto to live long enough for that.

“I know time is critical in this case, I will issue a written opinion as soon as possible,” Gaskill said.

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. The only legal form of execution in Idaho is lethal injection.

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. The federal case revolves around Pizzuto’s opposition to the chemicals being used, and the lack of transparency around the chemicals, in his execution.

Pizzuto’s attorneys file motion in federal court case

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 and heart disease, as well as their their concerns about how the execution chemicals may interact with the medicine he is currently taking for his medical conditions.

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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. Constitution’s Eighth Amendment prohibits the use of cruel and unusual punishments.

The defense also pointed to the timing of the pending execution between two major holidays as an obstacle for Pizzuto’s defense, saying 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 the 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.

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