BOISE, Idaho — A terminally ill man scheduled to be executed in mid-December for his role in the 1985 slayings of two gold prospectors in Idaho is asking a federal court to block the execution.
Attorneys for 66-year-old Gerald Ross Pizzuto Jr. asked the court in documents filed Monday in U.S. District Court in Idaho for a preliminary injunction halting the state’s death warrant, issued last week. The warrant sets Pizzuto’s execution by lethal injection on Dec. 15. But officials said they don’t have the chemicals needed to carry out the execution and are trying to obtain them.
Attorneys with the Federal Defenders Services of Idaho who are representing Pizzuto also, in a related case, filed documents Monday seeking a six-month administrative stay of the execution to allow time for litigation for the preliminary injunction.
The attorneys said that scheduling the execution between Thanksgiving and Christmas makes it more difficult to bring in witnesses and experts who won't be able to rearrange holiday travel plans.
“It is simply not feasible for them all to fly to Boise at the drop of a hat occasioned by the Attorney General’s rush to obtain a death warrant,” the attorneys said in a statement.
In addition to the filing in federal court, Federal Defenders Services also requested a stay in state court, pending U.S. Supreme Court proceedings. Second District Judge Jay Gaskill on Tuesday denied that motion.
Scott Graff, spokesperson for the Idaho attorney general's office, said Tuesday that the office had no comment on pending litigation.
Pizzuto's attorneys contend that the state's protocols involving religious accommodations in the execution chamber need to be revised. They said the state's procedures ban spiritual advisers from the execution chamber.
Specifically, Pizzuto's attorneys are asking the court to order Idaho to amend both the state's execution protocol and the administrative regulation on executions before the state can execute Pizzuto. Changing the state's administrative regulations typically involves a public process with hearings.
Arguments about a spiritual adviser being allowed in the execution chamber with Pizzuto have been playing out in federal court. Attorneys for Idaho in a court filing Nov. 4 said the state met Pizzuto's request and agreed to permit a “spiritual advisor, audible prayer, pastoral touching, and the use of religious items in the execution chamber during Plaintiff's execution.”
Additionally, Pizzuto's attorneys have also said that Pizzuto has a history of prescription medication that will make the pentobarbital less effective and create the potential for torture, and that he has an increased risk of a painful heart attack before he is sedated.
Pizzuto has spent more than three decades on death row and was originally scheduled to be put to death in June 2021. He asked for clemency because he has terminal bladder cancer, heart disease, diabetes and decreased intellectual function.
The Idaho Commission of Pardons and Parole then changed Pizzuto’s death sentence to life in prison. But Republican Gov. Brad Little rejected that recommendation, and the Idaho Supreme Court ruled in August that the governor’s decision to overrule the life-in-prison recommendation was legal.
“Gov. Brad Little can render all further legal proceedings unnecessary by accepting the clemency vote,” Federal Defender Services of Idaho said in its statement.
Pizzuto was camping with two other men near the town of McCall, in central Idaho, when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area.
Prosecutors said Pizzuto, armed with a .22-caliber rifle, went to the Herndons' cabin, tied their wrists behind their backs and bound their legs to steal their money. He bludgeoned them both, and co-defendant James Rice then shot Del Herndon in the head. Another co-defendant, Bill Odom, helped bury the bodies, and all three were accused of robbing the cabin.
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