Idaho Supreme Court denies Thomas Creech’s appeals. His execution is scheduled soon

BOISE (Idaho Statesman) — Idaho’s first execution in nearly 12 years will continue as scheduled later this month after the state’s highest court Friday denied a stay of execution for Thomas Creech and dismissed two of the longtime death row prisoner’s state appeals.

Attorneys for Creech argued Monday before the Idaho Supreme Court requesting the stay. They said the constitutional rights issues raised in their client’s two appeals, the complexities of the cases and a plain reading of state law provided for a halt of their client’s execution. The court’s five justices unanimously disagreed, siding with the state district court that previously ruled against Creech in both cases.

In one case, the lower court ruled Creech was not entitled to claim he had received ineffective legal counsel during a prior sentencing, when he was handed the death penalty, on account of his attorneys at the time not presenting his history of childhood physical and sexual abuse and traumatic head injuries to the judge. Creech also did not file the appeal in a timely manner as required by Idaho law, wrote Richard Bevan, Idaho’s chief justice.

In the second case, Creech’s attorneys argued that their client’s death sentence should be thrown out because it was handed down by a judge, rather than a jury, and was therefore unconstitutional. The U.S. Supreme Court ruled in 2002 that only juries could impose a death sentence. Creech’s appeal was denied for not having been filed in a timely manner, according to Idaho law.

The Idaho attorney general’s office, which argued against Creech’s appeals, did not respond to a request for comment Friday from the Idaho Statesman.

Creech’s attorneys with the nonprofit Federal Defender Services of Idaho said they were disappointed that the Idaho Supreme Court chose against answering whether it is constitutional for the state to execute a prisoner sentenced to death by a judge rather a jury.

“The court’s decision doesn’t change the fact that the country has put this practice behind it,” Deborah A. Czuba, supervising attorney of the legal nonprofit’s unit that oversees death penalty cases, said in a statement to the Statesman. “And it doesn’t change the fact that the very judge who sentenced Tom to death now opposes his execution because it would just be an ‘act of vengeance.’ ”

Creech, 73, has been incarcerated in Idaho for nearly 50 years, the majority of that time on death row. He has been convicted of five murders, including three in Idaho. Creech is suspected of several other murders for which he was never charged, including a decades-old cold case murder in San Bernardino County, California, in October 1974.

Creech first was convicted in Idaho of the November 1974 double-murder of Edward Thomas Arnold, 34, and John Wayne Bradford, 40, in Valley County. He was handed the death penalty, but his sentence was later dropped to life in prison after a 1976 U.S. Supreme Court ruling against automatic death sentences.

Creech was later convicted of the May 1981 murder of fellow prisoner David Dale Jensen, 23, while the two were serving in the Idaho maximum security prison. Creech pleaded guilty to Jensen’s murder and was again sentenced to death.

JUSTICES REJECT ‘EVOLVING STANDARDS’ ARGUMENT

At Monday’s hearing, LaMont Anderson, the chief deputy attorney general for the office’s capital litigation unit, called Creech’s attorneys’ argument for retroactive resentencing by a jury the “biggest Hail Mary that I’ve seen” during more than 26 years in his position.

“This petition is not legal,” Anderson told the justices. “And the reason it’s not legal is because it was a claim that was known or reasonably could have been known decades ago.”

Creech’s attorney, Jonah Horwitz, alleged that allowing his client’s execution to move forward would make Idaho the last state in the country to execute a prisoner in the absence of a jury. He argued that “evolving standards of decency” across the U.S. warranted applying the 2002 U.S. Supreme Court ruling, which prevented a judge, rather than a jury, from deciding on a death sentence.

In the other appeal, Anderson argued that the court’s ruling on whether a 2022 U.S. Supreme Court decision applies to state appeals would have a “massive effect” on at least three other Idaho death row prisoners’ cases. Anderson said the recent U.S. Supreme Court precedent regarding ineffective legal counsel did not comport with prior state law adopted by the Idaho Legislature.

The Idaho Supreme Court’s rulings Friday keep Creech’s scheduled execution by lethal injection on Feb. 28 on track. State prison officials said in October that they already have the drugs necessary for a lethal injection, which have become increasingly difficult to obtain.

The state’s most recent attempt to execute Creech, late last year, was upended when the Idaho Commission of Pardons and Parole agreed to provide Creech a rare clemency hearing for a death row prisoner to consider whether to drop his sentence to life in prison. Creech was supported in his effort by a number of former state prison workers, as well as the judge who sentenced him to death, and he was just the third death row prisoner to receive clemency review in Idaho since 1976.

Following the January hearing, the parole board’s commissioners announced last week that they had deadlocked in a 3-3 vote, which functioned as a denial of his clemency. The state obtained Creech’s latest death warrant the next day.

Creech’s attorneys then sued the parole board and the Ada County Prosecutor’s Office, which argued against clemency for Creech, in federal court following the parole board’s decision. That federal appeal arguing that Creech’s constitutional rights were violated at the hearing remains active.

Anderson, in a letter to the parole board’s executive director, pleaded with the parole board not to grant clemency review for death row prisoners going forward.

“The state sincerely hopes the commission will give greater pause before granting commutation hearings in the future for other death-sentenced murderers because that decision itself appears to spawn additional litigation,” Anderson wrote. “If the commission and the people of the great state of Idaho want to know why these cases take so long to complete, just look at the history of Creech’s case.”

In another federal appeal, the U.S. 9th Circuit Court of Appeals remanded elements of a legal challenge to the lethal injection drugs intended for use in Creech’s execution back to the lower federal court. Creech’s attorneys were invited by the appellate court to refile their petition with the U.S. District Court for the District of Idaho.

Creech has avoided execution 11 times during his decades on the state’s death row. Idaho has not executed a prisoner since June 2012.

“We will continue to fight to keep the government from killing a harmless and deeply remorseful old man who is beloved by the prison staff that will have to execute him,” Czuba said.