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.