Idaho legislator doesn't want judicial review of execution protocol

The director of the Idaho prison system has exclusive authority to set and revise the state’s protocols for carrying out the death penalty, and a lawmaker wants to ensure those decisions are not subject to judicial review, reported the Idaho Statesman.

 In January, Rep. Bruce Skaug, R-Nampa, proposed the change in law and described it as a “cleanup bill” for technical updates to statute. Facing pushback from fellow representatives at a committee hearing, Skaug agreed to retool the bill so it did not go beyond his stated intent.

The issue for which Skaug takes aim is at the heart of a death row prisoner’s lawsuit on appeal with the Idaho Supreme Court. Gerald Pizzuto’s attorneys argue that former Idaho Department of Correction Director Josh Tewalt abused his power when he arbitrarily changed lethal injection procedures in late 2024. That decision violates a law that grants oversight of state agencies and their actions to the legislative and judicial branches of government, attorneys with the Federal Defender Services of Idaho said. “The director of the Idaho Department of Correction believes the Legislature gave him a license to kill condemned prisoners any way he wants,” Pizzuto’s attorneys with the legal nonprofit wrote in a recent court filing. “The director is wrong. The Legislature has not given him unlimited power, cannot give him that power, and has not stripped the courts of jurisdiction.”

Tewalt’s changes to the state’s lethal injection protocols came about eight months after the prison system failed to execute a different death row prisoner in early 2024 when its execution team could not find a vein in his body suitable for an IV to deliver the chemicals. The change added a room where prisoners are to be examined and prepped for either a standard peripheral IV, or a central line — a more invasive procedure that inserts into the internal jugular in the neck, a femoral vein in the upper thigh or a subclavian vein in the chest. The next year, Skaug, who chairs the House judiciary committee, sponsored a bill that makes a firing squad the state’s lead execution method.

The Republican-controlled Idaho Legislature approved the bill that kept lethal injection as a backup option, and Gov. Brad Little signed it into law. Executions are on hold in Idaho as the prison system completes renovations to its execution chamber as part of the transition to a firing squad. The cost of that construction is roughly $1 million. Idaho is one of 27 states with the death penalty, but has not executed a prisoner in what will soon be 14 years.

The state counts eight prisoners on its death row, including Pizzuto. ‘A second bite of the apple’ The Idaho Attorney General’s Office represents IDOC in the legal appeal. It asserts that the agency’s director and their execution procedure decisions are excluded from Administrative Procedure Act review, including by the courts.

With limited exceptions, the governor-appointed Board of Correction, which oversees the state agency and selects its director, is exempt under that law. A district court judge in Ada County sided with IDOC and dismissed the case brought by Pizzuto, who was convicted in 1986 of killing two people in a robbery north of McCall and sentenced to death.

The Supreme Court in 2022 already ruled against Pizzuto in a similar lawsuit based on the same overarching law, leading the Attorney General’s Office to argue this new appeal “seeks a second bite of the apple,” which should be denied. Pizzuto, 70, is Idaho’s second-longest death row prisoner after nearly 40 years, and has overcome five scheduled execution dates during that time. In 2021, the state parole board voted to drop Pizzuto’s sentence to life in prison, but Little rejected it.

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More than 400 federal judges have ruled against Trump's immigration policies 4,421 times since October

Hundreds of judges around the country have ruled more than 4,400 times since October that President Donald Trump’s administration is detaining immigrants unlawfully, a Reuters review of court records found.

The decisions amount to a sweeping legal rebuke of Trump’s immigration crackdown. Yet the administration has continued jailing people indefinitely even after courts ruled the policy was illegal.

"It is appalling that the Government insists that this Court should redefine or completely disregard the current law as it is clearly written," U.S. District Judge Thomas Johnston of West Virginia, an appointee of President George W. Bush, wrote last week, ordering the release of a Venezuelan detainee in the state.

Most of the rulings center on the Trump administration’s departure from a nearly three-decade-old interpretation of federal law that immigrants already living in the United States could be released on bond while they pursue their cases in immigration court.

White House spokeswoman Abigail Jackson said the administration is "working to lawfully deliver on President Trump’s mandate to enforce federal immigration law."

Under Trump, the number of people in ICE detention reached about 68,000 this month, up about 75% from when Trump took office last year.

A conservative appeals court in New Orleans last week gave the Trump administration a victory in its drive to lock up more immigrants. Just because prior administrations did not fully utilize the law to detain people “does not mean they lacked the authority to do more,” U.S. Circuit Judge Edith Jones wrote in a decision reversing rulings that led to the release of two Mexican men. Both remain free, their lawyer said.

Other appeals courts are set to take up the issue in the coming weeks.

Tricia McLaughlin, a Department of Homeland Security spokesperson, said the increase in lawsuits came as "no surprise" - "especially after many activist judges have attempted to thwart President Trump from fulfilling the American people's mandate for mass deportations."

The department did not respond to more specific questions about the cases and data findings in this story.

With few other legal paths to freedom, immigrant detainees have filed more than 20,200 federal lawsuits demanding their release since Trump took office, a Reuters review of court dockets found, underscoring the sweeping impact of Trump's policy change.

In at least 4,421 cases, more than 400 federal judges ruled since the beginning of October that U.S. Immigration and Customs Enforcement is holding people illegally as it carries out its mass-deportation campaign, Reuters found.

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Creators: The State Must Be Bound by Its Word

Matthew T. Mangino
Creators
December 3, 2024

The Illinois Supreme Court recently overturned Jussie Smollett's conviction for falsely portraying himself to police as the victim of a hate crime. The decision evokes comparison to Pennsylvania's high court ruling vacating actor and comedian Bill Cosby's 2018 sexual assault conviction.

While the crimes and history of criminal conduct are very different, there are similarities that should make practitioners of criminal law take heed. In both cases, ambitious prosecutors using the notoriety of the accused breached their obligation to follow the law and protect the due process rights of the accused.

Cosby was investigated by the Montgomery County District Attorney's office in 2005 for the alleged sexual assault of Andrea Constand. The then-District Attorney Bruce Castor, a lawyer who later defended President-elect Donald Trump during his second impeachment trial, found "insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt."

In an unusual move, Castor filed a civil lawsuit against Cosby on behalf of Constand. If Cosby sat for a deposition in the civil case and told the truth, Castor agreed not to prosecute him.

Cosby testified in the civil case without invoking his Fifth Amendment privilege against self-incrimination. He admitted to taking women to his Montgomery County home, drugging them and sexually assaulting them. The civil suit was settled.

Castor's campaign opponent in 2015, Kevin Steele, made the Cosby prosecution a campaign issue. In the final weeks of their campaigns, according to The Guardian, Castor and Steele ran attack ads against each other over not charging Cosby with sexual assault during their respective tenures in the county DA office.

Steele rode Cosby's prosecution to victory. After taking office, Steele charged Cosby with sexual assault. Steele used Cosby's deposition testimony at trial and won a conviction.

Soon after Cosby was convicted, Smollett was indicted for 16 felony counts of disorderly conduct for allegedly lying to Chicago police. He was accused of hiring two brothers in 2019 to make it appear as though he was the victim of a hate crime.

A couple of weeks after the indictment, the district attorney's office reached an agreement with Smollett and his legal team to drop the charges. Prosecutors took into consideration Smollett's history of volunteer work in the city and his agreement to forfeit his $10,000 bond. He did 15 hours of community service and the charges were dismissed.

However, due to mounting public pressure, including a harsh rebuke from the mayor of Chicago, a Cook County judge appointed a special prosecutor in June 2019 to conduct an independent investigation of Smollett's case.

Smollett was later indicted on six charges of disorderly conduct. He was convicted on five of those charges in December 2021.

Cosby and Smollett both appealed their convictions.

In 2021, the Pennsylvania Supreme Court ruled that Cosby was unfairly prosecuted because he agreed to testify without invoking his Fifth Amendment right based on a deal made with the DA.

For Smollett, the outcome was similar. The Illinois Supreme Court ruled, "Because the initial charges were dismissed as part of an agreement with defendant and defendant performed his part of the agreement, the second prosecution was barred."

Joseph Cammarata, a Washington, D.C.-based attorney and partner at Chaikin, Sherman, Cammarata and Siegel, told CNN, "A special prosecutor was appointed and sought to undo what the state had agreed to, and the (Illinois Supreme Court) said, 'no, we're not going to allow that because it's not just, it's not fair, and the state must be bound by its word.'"

Both the Illinois and Pennsylvania Supreme Courts agreed that a man or woman accused of a crime must be able to trust a bargain made with the county's top prosecutor. Anything less would undermine the criminal justice system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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An examination of prosecutorial misconduct in Ohio criminal courts

Columbia Journalism Investigations and its partners examined hundreds of state appellate decisions to identify claims of prosecutorial misconduct in Ohio, reviewed hundreds of pages of police records and personnel files, and interviewed dozens of criminal justice experts, legal scholars, judges and defense attorneys from around the United States, along with prosecuting attorneys, and defendants whose cases were affected by the wrongdoing, reported NPR.

Among the findings:

• Of the scores of criminal trials from 2018 to 2021 in which appeals courts found that prosecutors acted improperly, most were for failing to disclose evidence and making inappropriate comments in closing arguments — violations that could have affected the defendants' ability to get a fair trial. Nearly 80% of the errors were ruled not egregious enough to warrant a reversal, which experts say enables prosecutors to make repeated mistakes with near impunity.
• None of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court, the body ultimately charged with doling out attorney discipline.
• All of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

The findings are a first-ever attempt to pull back the curtain of anonymity shielding Ohio prosecutors from public scrutiny when appeals courts affirm claims of improper conduct. They also show a systemic failure to hold prosecutors accountable that experts say is not exclusive to Ohio.

Legal scholars say the number of known misconduct cases is a vast undercount. About 3% of criminal cases make it to trial, and a fraction of those are appealed. Defendants often lack resources to challenge convictions, or they face procedural barriers that prevent them from doing so.

In Ohio, there were roughly 4,700 criminal trials statewide between 2018 and 2021. Nearly 450 appeals — about 10% of those trials — included an allegation of prosecutorial misconduct during that four-year period, CJI and NPR's analysis shows.

Appeals involving prosecutorial misconduct are rare, but in Ohio about 1 in 4 claims ended in a ruling of improper conduct in that time — a ratio that suggests a systemic problem, experts said.

Former prosecutor Bennett Gershman, who now teaches at Pace University's School of Law in New York, called the pattern of prosecutors who repeatedly act improperly in cases in Ohio a "microcosm" of the criminal justice system in states across the country.

In Tennessee, the Shelby County prosecutor was rebuked at least twice by higher courts in several murder cases for withholding key evidence or improper opening remarks, records show. Two of the convictions were overturned, and a new trial was ordered in one case. Voters ousted her last year.

In St. Charles County, Missouri, the state appeals court admonished a prosecutor in two cases for his "brazen use of propensity evidence" and in a third case for withholding evidence from the defendant, court records show. The attorney retired this year.

And in Monroe County, N.Y., which includes Rochester, the courts reprimanded a prosecutor in three sex crime cases for misrepresenting evidence and deals with jailhouse snitches, and for trying to slip inadmissible evidence into the record by asking the defendant to read it, according to court records. She is now a judge in a nearby county.

"Once you start focusing on these prosecutors, you can learn a lot about the prosecutorial mentality and why prosecutors engage in unethical behavior and why they consistently get away with it," said Gershman, one of the nation's preeminent scholars on the topic. "You'll find other jurisdictions in America which are equally shocking."

He said the Ohio statistics "show a shocking disregard for ethical behavior."

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