Idaho Supreme Court denies death row prisoner’s appeal. Federal stay of execution ordered

The Idaho Supreme Court dismissed an appeal Tuesday evening from prisoner Thomas Creech, which would seem to clear yet another hurdle for the state to end the life of its longest-serving member of death row next week.

But that plan was complicated earlier in the day when a federal judge said at a hearing that he would issue a stay of execution for Creech, because the state’s high court had yet to rule on the appeal, which relied on similar legal arguments. Creech was scheduled to be put to death Nov. 13 after a prior attempt to do so earlier this year failed.

U.S. District Judge G. Murray Snow, a senior judge from the District of Arizona, told the courtroom that it was necessary to wait on the Idaho Supreme Court’s ruling before the federal case could move forward. Snow, an appointee of former President George W. Bush, subbed in on Creech’s three active federal appeals because of potential conflicts of interest for Idaho’s federal judges.

“I’m not going to rush justice in a case like this,” Snow said at the hearing, which Creech attended by phone from Idaho’s max prison south of Boise. “Even if the (Idaho court’s) opinion came down today, I would be inclined to stay this matter for at least 20 days.”

On Wednesday morning, he issued the stay, which extended the deadline for all legal filings in the case to Nov. 29. A hearing for oral arguments would be expected to follow, plus time for Snow to issue his decision in the case, and push out the possibility of a new execution date for Creech even further.

Because the Supreme Court’s ruling “was issued just a week before Creech’s scheduled execution, a stay is necessary to allow the parties to fully brief, and for this court to fully consider” the arguments, Snow wrote in the order.

Idaho Department of Correction spokesperson Sanda Kuzeta-Cerimagic told the Statesman by email Tuesday that prison officials were aware of the verbal stay, but were awaiting the judge’s written order to take any action. On Wednesday afternoon, the prison system issued public notice that Creech had been returned to his cell on death row and execution preparations suspended.

The Idaho Attorney General’s Office, represented at the hearing by LaMont Anderson, the state’s chief capital deputy attorney general, opposed the issuance of a stay. A stay, or pause, meant the standing death warrant for Creech, obtained Oct. 16, would exceed its 30-day expiration date, Anderson acknowledged to the court. Creech’s death warrant would expire “on its own terms,” the prison system’s notice read.

Creech’s attorneys with the nonprofit Federal Defender Services of Idaho have alleged in the case that a second attempt to execute Creech would violate his constitutional rights, including against cruel and unusual punishment. Creech’s attorneys with the State Public Defender’s Office appealed a similar case to Idaho’s high court.

An Idaho district judge dismissed the case in September. Creech’s state public defenders appealed to the Idaho Supreme Court, where it awaited a decision from the five justices for more than a week.

Justice Cynthia Meyer wrote the court’s opinion, which affirmed the lower state court’s decision. Concurring were Justices Robyn Brody and Gregory Moeller. Chief Justice G. Richard Bevan wrote a separate concurrence, joined by Justice Roger Burdick.

State Public Defender Erik Lehtinen declined to comment on the court’s ruling, citing ongoing litigation.

Creech’s state public defenders have a separate appeal using the same legal arguments now before the justices, and are seeking a state-level stay of execution. Legal filings are due Friday.

Prosecutors provide no comment

At the federal hearing, Anderson and attorney Mary Spears, who represented Creech in court Tuesday, said they were surprised the Idaho Supreme Court had yet to issue its ruling. While earlier denying a stay of execution in that case, the justices also said they would decide it based only on legal briefs rather than hold a hearing for oral arguments.

The Federal Defender Services of Idaho declined a Statesman request for comment Tuesday, and did not immediately respond Wednesday after Snow issued his stay order.

Creech, 74, is Idaho’s longest-serving death row prisoner, and will have been imprisoned for 50 years as of Thursday. Creech has been convicted of five murders, including three Idaho victims, and prosecutors suspect he committed several others across the western U.S.

This death warrant obtained by the Ada County Prosecutor’s Office was the 13th since Creech was sentenced to death in 1976. It scheduled his execution by lethal injection for Nov. 13.

Creech survived a planned execution by lethal injection in February. After about an hour, the prison’s team was unable to locate a suitable vein to establish an IV for the lethal chemicals, and state prison leadership called it off. Ada County Prosecutor Jan Bennetts and Idaho Attorney General Raúl Labrador attended as state witnesses at the failed execution.

Creech became the first prisoner in Idaho to survive an execution, and just the sixth in modern U.S. history to survive one by lethal injection, according to the Death Penalty Information Center.

Through her office spokesperson, Bennetts, who won re-election Tuesday, declined to comment and directed the Statesman to the AG’s office because it is handling the federal case. At an election party Tuesday night, Bennetts told a Statesman reporter she had yet to review the state Supreme Court’s ruling, so could not speak to it.

Repeat requests for comment from the AG’s office have received no response.