Idaho: Federal Judge Grants Stay of Execution for Thomas Creech; Defense Asks Court to Bar Death Penalty for Bryan Kohberger

After sur­viv­ing a botched exe­cu­tion attempt in February, Thomas Creech was sched­uled for  exe­cu­tion a sec­ond time on November 13 in Idaho. On Wednesday, November 6, a fed­er­al dis­trict court issued a stay of exe­cu­tion to allow more time to con­sid­er Mr. Creech’s legal claims. The Idaho Department of Corrections announced that ​“exe­cu­tion prepa­ra­tions have been sus­pend­ed” and the exe­cu­tion war­rant will expire.

Mr. Creech, 74, is the longest-serv­ing pris­on­er on Idaho’s death row. On February 28, the exe­cu­tion team tried eight times to set an IV line to admin­is­ter lethal injec­tion drugs to Mr. Creech, insert­ing nee­dles into his hands, feet, and legs, but each time his veins col­lapsed. The exe­cu­tion — the first the state had attempt­ed in 12 years — was even­tu­al­ly called off after over an hour. Mr. Creech’s attor­neys had warned that his age and med­ical con­di­tions, includ­ing Type 2 dia­betes, hyper­ten­sion, and ede­ma, could impact cir­cu­la­tion and vein qual­i­ty. ​“Mr. Creech has spent more than 50 years in prison and is now suf­fer­ing from sig­nif­i­cant men­tal health issues because of the trau­ma he was sub­ject­ed to when the state failed to exe­cute him,” said Deborah Czuba, his attor­ney. ​“We hope the courts will rec­og­nize the cru­el and unusu­al lev­el of pun­ish­ment that this remorse­ful and harm­less old man has already been through, and stop a need­less exe­cu­tion.”  

Yet the state sched­uled Mr. Creech for lethal injec­tion a sec­ond time and amend­ed its exe­cu­tion pro­to­col to allow offi­cials to use a more inva­sive IV pro­ce­dure. Under the new pro­to­col, the exe­cu­tion team may access larg­er veins in the neck, groin, chest, or upper arm to run a catheter to a person’s heart. The state spent over $300,000 this sum­mer to build a new exe­cu­tion prepa­ra­tion room, and near­ly a mil­lion dol­lars in total to cre­ate a secured facil­i­ty for exe­cu­tions by fir­ing squad, which Idaho leg­is­la­tors autho­rized as an alter­na­tive exe­cu­tion method in 2023. The state spent an addi­tion­al $100,000 to pur­chase lethal injec­tion drugs for the new attempt.  

Mr. Creech’s team chal­lenged his November exe­cu­tion date on sev­er­al fronts, includ­ing alleged pros­e­cu­to­r­i­al mis­con­duct dur­ing a February clemen­cy hear­ing ahead of the botched exe­cu­tion attempt. Mr. Creech was sen­tenced to death for the mur­der of David Jensen while both men were incar­cer­at­ed; the state argued that Mr. Creech beat Mr. Jensen to death with a sock full of bat­ter­ies. Mr. Creech con­tend­ed that he attacked Mr. Jensen in self-defense and the weapon had belonged to anoth­er pris­on­er, with the sock bear­ing the name of that pris­on­er. During the clemen­cy hear­ing, pros­e­cu­tors showed the Idaho Commission of Pardons and Parole a pho­to of one of Mr. Creech’s socks labeled with his name. In a law­suit, Mr. Creech’s attor­neys alleged that pros­e­cu­tors mis­rep­re­sent­ed the pho­to as depict­ing the mur­der weapon to argue that Mr. Creech had planned the attack. According to Mr. Creech’s team, pros­e­cu­tors also told the Commission that Mr. Creech had mur­dered a man named Daniel Walker in California, a crime for which Mr. Creech was nev­er charged or con­vict­ed. 

One parole board mem­ber recused him­self and the oth­ers split 3 – 3, a divid­ed vote that meant no rec­om­men­da­tion of clemen­cy. The Commission denied Mr. Creech’s request in October for a sec­ond clemen­cy hear­ing. The tri­al judge, tri­al pros­e­cu­tor, prison war­den, many prison staff, and a fam­i­ly mem­ber of Mr. Walker are among those sup­port­ing clemen­cy for Mr. Creech. 

In mid-October, the Ninth Circuit grant­ed Mr. Creech’s motion to recuse the fed­er­al judge assigned to adju­di­cate his pros­e­cu­to­r­i­al mis­con­duct claim based on her close friend­ship with one of the pros­e­cu­tors in the case. Judge G. Murray Snow of Arizona was appoint­ed as a replace­ment. Mr. Creech’s team also filed both state and fed­er­al claims argu­ing that a sec­ond exe­cu­tion attempt would con­sti­tute dou­ble jeop­ardy and cru­el and unusu­al pun­ish­ment. Judge Snow indi­cat­ed dur­ing a November 5 hear­ing that he would issue a stay of exe­cu­tion based on a delay in the Idaho Supreme Court’s rul­ing on those claims, to give the par­ties more time to brief the par­al­lel fed­er­al argu­ments, and for the court to con­sid­er the sep­a­rate mis­con­duct claims. The Idaho Supreme Court denied Mr. Creech’s appeal late Tuesday and Judge Snow issued his stay in writ­ing on Wednesday morn­ing. ​“I’m not going to rush jus­tice in a case like this,” Judge Snow said.  

Mr. Creech’s botched exe­cu­tion fea­tured in the November 7 pre­tri­al hear­ing for Bryan Kohberger, accused of killing four University of Idaho stu­dents in 2022. Mr. Kohberger’s attor­neys argued that the death penal­ty as imposed in Idaho was cru­el and unusu­al pun­ish­ment because Idaho did not have a humane or avail­able method of exe­cu­tion, as illus­trat­ed by the state’s fail­ure to exe­cute Mr. Creech. ​“There’s a con­sti­tu­tion­al issue with hav­ing some­body sit on death row when there’s no mean­ing­ful way for them to be exe­cut­ed,” his team argued.  

Attorneys for the state con­tend­ed that the defense raised the issue too ear­ly because Mr. Kohberger has not yet been tried or sen­tenced to death, and if he is, there could be alter­nate meth­ods avail­able by the time he faces exe­cu­tion. Judge Steven Hippler described Mr. Creech’s botched exe­cu­tion as a ​“par­tic­u­lar­ized inci­dent” due to his med­ical issues and said he did not believe the prob­lems with lethal injec­tion were ​“uni­ver­sal.” He said he would take the motion under advise­ment and issue a writ­ten rul­ing.  

Mr. Kohberger’s attor­neys asked Judge Hippler to strike the death penal­ty from his case on sev­er­al oth­er grounds, includ­ing objec­tions to the four aggra­vat­ing fac­tors charged by the state. The defense argued that the fac­tors, as a whole and indi­vid­u­al­ly, do not suf­fi­cient­ly nar­row eli­gi­bil­i­ty for the death penal­ty as the Constitution requires. The defense relied on the work of Dr. Aliza Plener Cover, a University of Idaho law pro­fes­sor who pub­lished a study find­ing that ​“86 – 90% of all [Idaho] mur­der con­vic­tions were fac­tu­al­ly first-degree mur­der cas­es, and 93 – 98% of fac­tu­al first-degree mur­ders were eli­gi­ble for the death penal­ty.” However, only 3% of eli­gi­ble cas­es result­ed in a death sen­tence.  

Dr. Cover not­ed that this dis­par­i­ty was more dra­mat­ic than the one cit­ed in Furman v. Georgia (1972), which struck down death penal­ty statutes across the coun­try as uncon­sti­tu­tion­al­ly arbi­trary. Based on a find­ing that only 15 – 20% of death-eli­gi­ble defen­dants were sen­tenced to death, the Furman court held that with­in such a sys­tem, ​“death sen­tences are cru­el and unusu­al in the same way that being struck by light­ning is cru­el and unusu­al.” Dr. Cover wrote that her find­ings, which ​“com­bine a high rate of death eli­gi­bil­i­ty with a low rate of death-charg­ing and death-sen­tenc­ing,” ​“strong­ly sug­gest that death is an ​‘unusu­al’ pun­ish­ment in Idaho.”  

Judge Hippler denied two defense requests to allow experts to tes­ti­fy dur­ing the hear­ing but took all oth­er motions under con­sid­er­a­tion and will issue his deci­sions in writ­ing.