by Douglas Ankney

On February 28, 2024, Idaho halted the execution of Thomas Eugene Creech, 73, after the all-volunteer team assigned to kill him was unable to find a suitable vein to establish the intravenous connection necessary for his lethal injection.

Creech, convicted of five murders in three states, was initially sentenced to death in 1983 for the murder of fellow prisoner David Dale Jensen in 1981. At the time of Jensen’s murder, Creech was serving two life sentences for the murders of house painters John Wayne Bradford and Edward Thomas Arnold. But Creech “admitted to killing or participating in the killing of at least 26 people,” as the Supreme Court of the U.S. recalled when hearing his appeal in Arave v. Creech, 507 U.S. 463 (1993), and “[t]he bodies of 11 of his victims—who were shot, stabbed, beaten, or strangled to death—have been recovered in seven States.”

Placed on a gurney, Creech was wheeled into the execution chamber at Idaho Maximum Security Institution (IMSI) at 10:00 a.m. Three members of the killing team tried eight times to establish an IV in Creech’s arms, legs, hands, and feet. But they could not access a vein of sufficient quality. Each time an attempted IV insertion was made, Creech’s skin was cleaned with alcohol, injected with a numbing solution, and cleaned again. Each attempt took several minutes. One volunteer killer actually left the execution chamber to retrieve more supplies before IMSI’s warden halted the execution at 10:58 a.m. The warden then approached Creech, whispered to him for several minutes, and gave his arm a squeeze.

Hours later, state Attorney General Raul Labrador (R) released a statement bemoaning that “justice has been delayed again.” Creech’s attorneys immediately moved the U.S. District Court for the District of Idaho for a stay, which was granted after Idaho confirmed it would not seek to execute Creech again before the death warrant expired. The state must now obtain another death warrant if it wants to carry out the execution.

The Federal Defender Services (FDS) of Idaho released a statement saying that a “badly botched execution attempt” is “what happens when unknown individuals with unknown training are assigned to carry out an execution.”

“This is precisely the kind of mishap we warned the State and the Courts could happen when attempting to execute one of the country’s oldest death-row inmates.” FDS added.

Two Trips to Ninth Circuit

Creech and fellow Idaho death row prisoner Gerald Ross Pizzuto, Jr. sued Gov. Brad Little (R) and several DOC employees in March 2020, alleging constitutional violations in the manner and method in which Defendants intended to carry out their executions. The district court dismissed the complaint for lack of subject matter jurisdiction, finding the claims not ripe. Plaintiffs appealed, and the U.S. Court of Appeals for the Ninth Circuit then reversed that decision, holding that the claims were ripe. See: Pizzuto v. Tewalt, 997 F.3d 893 (9th Cir. 2021) The Court acknowledged that Creech’s claims did not appear viable but said that he “should be permitted to amend the complaint on remand to advance any colorable claims.”

On remand, the district court sua sponte dismissed the complaint for failure to state a claim, citing Fed. Rule of Civ. Proc. 12(b)(6). While that decision was pending, the State obtained a death warrant for Pizzuto, and his execution was imminent. The district court reasoned that amendment of the complaint would be futile and dismissed it with prejudice and without leave to amend. Creech appealed again. (Pizzuto was removed as a Plaintiff, but his execution did not occur.)

Back at the Ninth Circuit, the Court observed that “[a] district court that has received the mandate of an appellate court cannot vary or examine that mandate for any purpose other than executing it,” citing Hall v. City of Los Angeles, 697 F.3d 1059 (9th Cir. 2012); however, the mandate “leaves to the district court any issue not expressly or impliedly disposed of on appeal,” the Court continued, pointing to S.F. Herring Ass’n v. United States DOI, 946 F.3d.564 (9th Cir. 2019). Since the Court had not disposed of the issue of the futility of amending the complaint, the district court did not violate the Court’s mandate.

The Ninth Circuit then agreed that, with the exception of three of Creech’s claims, amendment would be futile. One of those claims was that his attorneys had a “right to access and inspect the execution chamber before execution, witness the entire execution procedure, and have access to cameras and phones during the execution.” The Court agreed that it has “long held that ‘the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those initial procedures that are inextricably intertwined with the process of putting the condemned inmate to death,’” pointing to Cal. First Amendment Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2002).

In Claim Four, Creech argued that Defendants’ failure to provide information concerning the manner and method of execution—including the exact lethal injection drugs used, their expiration dates and source, as well as the location of intravenous tubes in the execution chamber, sites of injection on Creech’s body and the training received by those administering the drugs—“raises a procedural barrier to challenging the constitutionality of [DOC’s] execution process,” in violation of the Due Process Clause of the Fourteenth Amendment. In its earlier ruling in the case, the Court had expressed skepticism about this claim because DOC issued an execution protocol far in advance of any executions. But in the interval between remand and this opinion, DOC had twice “suspended” its protocol in scheduled executions shortly before the date arrived. The Court concluded that Creech should be permitted to amend this claim on remand.

Finally, in Claim Nine, Creech argued that Defendant’s failure to provide the information outlined in Claim Four prevented his attorneys from arguing an Eighth Amendment violation based on Creech’s underlying health issues. Therefore, without the information, there was “a substantial risk that [Creech] will be subjected to severely painful execution, in violation of the Eighth Amendment,” due to numerous medications he was prescribed, as well as his brain damage. The Court said that “[g]iven Creech’s health conditions and medications, as well as the liberal public policy favoring amendment, we conclude that Creech should be afforded the opportunity to amend this claim.” Accordingly, the district court’s order with regard to Claims 1, 4, and 9 was vacated and remanded with instructions to allow Creech to amend and/or supplement. See: Creech v. Tewalt, 84 F.4th 777 (9th Cir. 2023).

Back at Ninth Circuit Three More Times

On remand, the district court once again sent Creech back to the execution chamber. In the weeks prior to his scheduled date there, Creech’s attorneys filed several challenges to forestall the execution. But the Ninth Circuit rejected all of them, including a claim that his clemency hearing was unfair. See: Creech v. Idaho Comm’n of Pardons and Parole, 94 F.4th 851 (9th Cir. 2024). The Court also rejected a claim that the execution drugs were tainted, expired, and/or from an unknown source. See: Creech v. Tewalt, 94 F.4th 859 (9th Cir. 2024). And it rejected a claim that his death sentence violated the Eighth Amendment because it was imposed by a judge instead of a jury. See: Creech v. Richardson, 94 F.4th 847 (9th Cir. 2024).

Creech’s supporters insist he is a deeply changed man. Many years ago he married the mother of a guard. Former prison officials said Creech had a reputation for expressing gratitude for their work and for writing poetry. His horrendously botched execution follows another in Alabama in November 2022, when officials called off the lethal injection of Kenneth Eugene Smith, 58; he was later suffocated with nitrogen gas in January 2024, his body shaking and convulsing for several minutes on the death chamber gurney before dying, as PLN reported. [See: PLN, Mar. 2024, p.24.]

Sources: AP News, New York Times