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Idaho death row inmate spared execution as judge overrules governor

The death sentence of convicted murderer Gerald Pizzuto was overturned when a judge ruled the parole commission, not the governor, has the final say in commutations.

BOISE, Idaho — A convicted murderer sentenced to die for killing a man and woman at a remote cabin near McCall will be spared the death penalty after a judge ruled Friday afternoon that the governor did not have the authority to reject a clemency recommendation. 

The ruling in the case of 66-year-old Gerald Pizzuto sets the precedent that the Idaho Commission of Pardons and Parole, not the Idaho governor, has the final say in whether a sentence is commuted. The decision from Second District Court Judge Jay Gaskill, filed in Idaho County, could have far-reaching implications in other cases.

Pizzuto was given the death penalty for beating 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon to death with a hammer in 1985. Last year, his lawyers asked the Idaho Commission of Pardons and Parole to spare his life, arguing that the inmate was wheelchair-bound, terminally ill and no longer a threat to anyone. 

His attorneys also made the case that Pizzuto's severe childhood physical and sexual abuse, as well as brain damage, should have been taken into account at his original sentencing. 

Although prosecutors and a surviving family member of the Herndons urged the commission not to change the death sentence, the Idaho Probation and Parole Board voted 4-3 in favor of recommending to Gov. Brad Little that Pizzuto's sentence be commuted to life in prison without parole.

In their November meeting, the board members said the governor would have the final call on whether to adopt that recommendation. Little denied the clemency request in late December, leaving Pizzuto's death sentence in place. 

"The severity of Pizzuto's brutal, senseless, and indiscriminate killing spree strongly warrants against commutation. Therefore, I respectfully deny the Commission's recommendation so that the lawful and just sentences for the murders of Berta and Del can be fully carried out as ordered by the court," Little wrote then.

But in the Friday decision, Gaskill wrote that the Idaho Constitution does not give the governor the power to make that decision. The judge ruled that a 1986 amendment to the Constitution gives governors the power to grant "respites and reprieves," while the sole power to grant a pardon or commutation lies with the Idaho Probation and Parole Board.

Gaskill wrote that he was unconvinced that language in the amendment meant the Legislature "can usurp the Commission’s power and shift their decision-making authority to the governor."

"The Commission voted 4-3 to commute Pizzuto’s sentences from death to life in prison without parole. Article IV, Section of the Idaho Constitution does not provide the governor of the state with the power of commutation, therefore, the current state of Pizzuto‘s death sentences — in light of the Commission’s decision that the sentences should be commuted to life in prison without parole — are illegal," Gaskill wrote.

The judge granted Pizzuto's appeal, effectively halting his execution and reducing his sentence to life without parole.

In a statement Friday evening, Little said he would appeal the ruling, meaning the decision will likely end up before the Idaho Supreme Court.

“One judge agreed with the federal defender that Idaho Code violated the Constitution. Governor Little has followed the Constitution and Idaho Code as written," the statement reads. "Governor Little will challenge this ruling because the state must have the ability to carry out the death penalty as ordered by the court in this case. Pizzuto was convicted of rape, robbery and four brutally gruesome murders. This matter is now left for a higher court to ultimately decide.”

Deborah Czuba, Supervising Attorney for the Capital Habeas Unit of Federal Defender Services of Idaho, issued the following statement in support of the court's decision:

“We are grateful that the court upheld the just and merciful decision by the Parole Commission to let Jerry Pizzuto die in prison. As the court recognized, the Idaho Constitution wisely leaves commutation decisions to the Commissioners, who the Governor appoints based on their judgment and expertise in such matters. The people of Idaho have not given the Governor the power to interfere in the commutation process, and as the court found he acted illegally here. We hope the State will now do the right thing and finally allow a dying man to pass away of natural causes in prison, rather than continuing to fight for an unnecessary execution through costly litigation at taxpayer expense.”

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