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Idaho Supreme Court to decide governor’s authority, longtime death row inmate’s fate

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BOISE (Idaho Statesman) – The Idaho Supreme Court is tasked Monday with hearing arguments over whether to limit the governor’s powers, a case that will likely decide whether a death row inmate lives or dies.

The appeals case stems from last year’s decision by the Idaho Commission of Pardons and Parole to reduce the death sentence of convicted murderer Gerald Pizzuto to life in prison. The same day, Gov. Brad Little intervened to reject the parole board’s split majority vote, maintaining Pizzuto’s decades-long path toward execution.

The core question now is whether the governor has the authority to deny the parole board’s decisions. A 1986 voter-approved amendment to the Idaho Constitution is at the center of the debate.

Targeting that amendment, Pizzuto’s attorneys challenged the Republican governor’s action earlier this year, arguing that even the state’s revised constitution does not grant the governor such power. A state district court judge — the same one who signed Pizzuto’s most recent death warrant last summer — agreed, and restored the parole board’s vote to grant clemency to Pizzuto, 66, who suffers from late-stage bladder cancer and has been in hospice care for more than two years.

Judge Jay Gaskill, of Idaho’s 2nd Judicial District in Nez Perce County, wrote in his February opinion that there is no evidence that either the state’s founders or voters in 1986 “intended to give the governor the ultimate decision-making authority with respect to whether a death sentence should be commuted.”

“The Idaho Constitution has never directed that one individual has the power to decide matters in any criminal matter, let alone a case with the ultimate penalty of death,” Gaskill wrote.

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The attorney general’s office, in collaboration with the governor’s office, appealed the decision to the Idaho Supreme Court. Just one of the court’s five members, Justice Colleen Zahn, was appointed by Little.

DEBATE OVER ‘AMBIGUOUS’ AMENDMENT

The arguments in the case from the attorney general’s office focus on five words: “only as provided by statute.”

The Idaho Legislature sought in 1986 to limit the parole board’s power through a constitutional amendment, which entailed adding the phrase to the state’s constitution. Amending the Idaho Constitution requires voter approval, and more than 68% supported the change.

But Gaskill, spurred on by Pizzuto’s attorneys with the nonprofit Federal Defender Services of Idaho, wrote that the five-word phrase was ambiguous. The Idaho Constitution still states that the parole board, which is appointed by the governor, is the only entity in the state with the authority to “grant commutations and pardons after conviction.” Meanwhile, the governor has the power to grant respites or reprieves, or what equate to temporary delays of executions.

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An Idaho law passed in 1988 based on the constitutional amendment later clarified that in death penalty cases, “the commission’s determination shall only constitute a recommendation subject to approval or disapproval by the governor.” Gaskill ruled, though, that the language added to the constitution doesn’t grant the governor the ability to overrule the commission’s decision, making Little’s action to deny Pizzuto’s reduced sentence unlawful.

The attorney general’s office argued in its filing with the Idaho Supreme Court that Gaskill erred in his analysis of the five-word phrase, because its meaning is rooted in “legislative history and rules of statutory construction.”

“It is difficult to envision how the phrase ‘only as provided by statute’ is ambiguous,” read the brief signed by Lamont Anderson, deputy attorney general and chief of the office’s capital litigation unit. “The intent of the Idaho Legislature was to convey upon the Legislature the sole power to determine how and when commutations and pardons can be provided.”

The “plain language” of the Idaho Constitution, Pizzuto’s attorneys countered in their response brief, makes the 1988 law unconstitutional.

“Although (Idaho law) claims to give the governor the ultimate commutation power, it is unconstitutional,” read the filing signed by Jonah Horwitz, Pizzuto’s attorney with the Federal Defender Services. “The constitution confers the commutation power exclusively on the commission, rendering (Idaho law) unlawful and the governor’s interference with Mr. Pizzuto’s case invalid.”

Spokespersons for the attorney general’s office and Federal Defender Services each declined Idaho Statesman requests for comment about Monday’s hearing.

The Supreme Court allowed the governor’s office to file a friend-of-the-court brief in support of the state’s position in the appeal.

“It is no secret that this case involves the most litigated capital case in Idaho history,” read the filing signed by Brady Hall and Jared Larsen, each counsel for the governor’s office. “This is a studied and well-developed policy that is supported by (the Idaho Constitution). The pardon and commutation regime that Idaho settled on nearly a century after statehood is constitutional and deserves to continue.”

PIZZUTO’S CONVICTION HISTORY

Pizzuto has remained on Idaho death row since 1986, after he was convicted of the murders the year before of two people at a remote Idaho County cabin north of McCall.

RELATED | He killed 2 people in Idaho in 1985. Now he’s asking the state not to execute him.

Berta Herndon, 58, and her nephew Del Herndon, 37, were prospecting gold in the area when Pizzuto and a pair of accomplices robbed and killed them. Pizzuto’s co-defendants testified that he bludgeoned the Herndons to death with a hammer, and each received lighter sentences.

Pizzuto has avoided execution three times since then, most recently last summer, when the state’s parole board granted him a clemency hearing. Pizzuto’s scheduled June 2021 lethal injection was postponed.

pizzuto attorneys
Idaho death row inmate Gerald Pizzuto, center, attends his clemency hearing in November 2021. Bruce Livingston, left, one of Pizzuto’s attorneys with the nonprofit Federal Defender Services of Idaho, sits at his left, with other members of his team also on hand. | Idaho Public Television / Screenshot

The seven-member parole board held the clemency hearing in November, and granted him commutation in a 4-3 vote a month later, citing Pizzuto’s worsening health and the fact that he will never be released. Little rejected the parole board’s decision the same day.

RELATED | Clemency hearing Tuesday for terminally ill death row inmate

“I am committed to the rule of law and have followed the Idaho Constitution and Idaho code in denying a reduced sentence for Gerald Pizzuto’s cruel and calculated murders of Berta and Del Herndon in Idaho County,” Little said in a written statement released Friday by his office. “The severity of Pizzuto’s brutal, senseless, and indiscriminate killing spree strongly warrants against a reduced sentence. The state must have the ability to fully carry out the just sentences as ordered by the court in this case.”

Four days after Little’s action rejecting the parole board’s decision, Pizzuto’s attorneys questioned its legality and filed a motion in state district court. In February, Gaskill ruled in their favor and reinstated the parole board’s decision.

PIZZUTO’S CONSTITUTIONAL RIGHTS VIOLATED, ATTORNEYS SAY

In a separate lawsuit filed against the parole board since that time, Pizzuto’s attorneys argued that failing to remove their client from the confines of death row is unlawful. That lawsuit also named the warden at the Idaho Maximum Security Institution, where Pizzuto is held.

In their petition for prisoner reclassification, Pizzuto’s attorneys argued continuing to imprison him under current conditions violates their client’s constitutional rights.

“He continues to be treated as a death row inmate when his death sentences have effectively been commuted to life without the possibility of parole under the state constitution,” the filings read.

The attorney general’s office, again representing the state, opposed Pizzuto’s release into a separate population at the prison before the Supreme Court issues its decision. Two weeks ago, Ada County Magistrate Judge Michael Dean paused the lawsuit while they await the ruling from the state’s highest court.

The attorney general’s office has in the meantime secured an initial victory in its appeal from the state Supreme Court. Against the wishes of Pizzuto’s attorneys, it successfully petitioned the Supreme Court to move up the hearing.

“The question in this appeal is simply too important for further delay and should be resolved expeditiously,” the state’s request read. “If this appeal is not expedited, it is probable that a very important state constitutional question may not be addressed because of Pizzuto’s death (from natural causes).”

“If anything, the importance of an issue, standing alone, is an incentive for the court not to expedite an appeal,” the Federal Defender Services wrote in its response. “The court’s answer should be crafted with the care and attention of a full appeal, and not an unnecessarily rushed timetable.”

But come Monday, Idaho Supreme Court justices will be asked to begin deciding whose constitutional interpretation — Pizzuto or the state’s — is correct. The court’s ruling is not expected for several months.

Should the justices issue a ruling in favor of the state, the attorney general’s office seeks the immediate issuance of another death warrant for Pizzuto — his fourth — and the scheduling of his execution by lethal injection.

The Supreme Court hearing is scheduled for 10 a.m. Monday and is open to the public.

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