On February 9, 2024, the Idaho Supreme Court unanimously dismissed two state appeals for 73-year-old Thomas Creech, thereby denying his requests for a stay of execution. Mr. Creech, who has been on death row for more than 40 years, has also requested a new clemency hearing. He is scheduled to be executed by lethal injection on February 28, which would be Idaho’s first execution since 2012. 

The justices upheld the district court’s denial, agreeing that both appeals were not filed in a timely manner according to Idaho law. Garth McCarty of the State Appellate Public Defender’s Office argued in one appeal that Mr. Creech had received ineffective assistance of counsel during postconviction proceedings; Jonah Horwitz of the Federal Public Defender’s Office argued in the second appeal that the imposition of a death sentence solely by a judge, not a jury, violated Mr. Creech’s rights under the U.S. Constitution and Idaho Constitution. The practice has since been outlawed in the state, which now requires a unanimous jury verdict for the imposition of a death sentence. 

“We are disappointed that the Idaho Supreme Court chose not to answer the question of whether it’s unconstitutional for Idaho to execute someone who was sentenced to death by a judge without a jury when it’s the last state in the country putting such people to death,” said one of Mr. Creech’s attorneys Deborah Czuba following the loss. “The court’s decision doesn’t change the fact that the country has put this practice behind it, 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.’” 

A few weeks earlier, the Idaho Commission of Pardons and Parole held a clemency hearing for Mr. Creech, the third hearing of its kind in the state’s history. The 3-3 tie vote, with the seventh member of the board recusing himself for an undisclosed reason, resulted in a recommendation against Mr. Creech’s plea for a life sentence; Mr. Creech’s attorneys argue that the recusal deprived him of the opportunity to persuade another member of the board. Although the governor is not obligated to follow the board’s recommendation, Governor Brad Little stated he has “zero intention” of granting a stay. On February 7, attorneys for Mr. Creech filed a motion with the U.S. District Court of Idaho requesting a new hearing “because the Commission failed to comply with minimal due process requirements by accepting and considering the prosecution’s last-minute false statements and questionable evidence without allowing Mr. Creech a chance to investigate and demonstrate the prosecution’s misrepresentations.” The petition adds: “Likewise, Mr. Creech brings this action against the prosecution because it too violated due process through misrepresentations and the use of questionable evidence, as well as its failure to provide Mr. Creech with any notice of this evidence.”  

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Kevin Fixler, Idaho Supreme Court denies Thomas Creech’s appeals. His exe­cu­tion is sched­uled soon, Idaho Statesman, February 9, 2024; CBS2 News Staff, Idaho Supreme Court denies appeal of death row inmate Thomas Creech, upholds exe­cu­tion, CBS2 Idaho News, February 9, 2024; Kevin Fixler, Idaho death row pris­on­er Thomas Creech asks fed­er­al court to stop his exe­cu­tion, Idaho Statesman, February 7, 2024; Rebecca Boone, Idaho inmate near­ing exe­cu­tion wants a new clemen­cy hear­ing. The last one was a tie, Associated Press, February 7, 2024; CBS2 News Staff, Long-term Idaho death row inmate Thomas Creech chal­lenges exe­cu­tion, seeks new hear­ing, CBS2 Idaho News, February 6, 2024; RUTH BROWN, Idaho Supreme Court hears Thomas Creech’s case for stay of exe­cu­tion, Idaho Capital Sun, February 5, 2024;