Complaint accuses IDOC of buying lethal injection drug with suitcase of cash in 2012
A complaint filed in federal court Thursday alleges that Idaho Department of Correction authorities in 2012 purchased lethal injection drugs with a suitcase full of cash in a Tacoma parking lot, raising questions for current inmates on death row.
The lawsuit is on behalf of Gerald Pizzuto Jr. and Thomas Creech, two inmates awaiting execution, and was filed by the Capital Habeas Unit of the Federal Defender Services of Idaho.
The public defenders argue that the state has violated the men’s rights by making plans to execute them “while providing them essentially zero information about its plans on how it will do so.”
Pizzuto has been on death row since 1986 for two murders in Idaho County. Creech has been on death row since 1983 for the murder of a fellow inmate in Ada County.
The two most recent executions in Idaho were those of Paul Ezra Rhoades, on Nov. 18, 2011, and Richard Leavitt, on June 12, 2012.
The 70-page complaint alleges a variety of misconduct by state officials, but most prominently the actions of former IDOC Director Kevin Kempf and current IDOC Director Josh Tewalt.
The complaint alleges that on May 30, 2012, Tewalt and Kempf boarded a chartered plane with a suitcase containing more than $10,000. Kempf and Tewalt flew to Tacoma Narrows Airport in Washington and used the money to buy pentobarbital — a sedative used in the execution process — in a Walmart parking lot in Tacoma, according to the complaint.
On May 25, 2012, IDOC announced its intent to execute Leavitt with a single-drug protocol of pentobarbital. The plaintiffs believe officials used the drug allegedly bought in Tacoma in Leavitt’s execution.
IDOC had previously refused to release the source of the drugs used in Leavitt’s execution. After a lawsuit, an Ada County judge ordered the agency in 2019 to disclose the source; instead, IDOC appealed to the Idaho Supreme Court, which is expected to hear the case sometime this year, according to The Associated Press.
At the time of the alleged transaction, Kempf was the division chief of operations for IDOC and Tewalt was deputy chief of bureau of prisons for IDOC. They were serving under then-IDOC Director Brent Reinke, appointed by then-Gov. Butch Otter.
The complaint states the plaintiffs believe that Kempf and Tewalt were sent to Tacoma by Reinke, and it was authorized by Otter.
On Friday morning, the Idaho Statesman reached out to Kempf, Otter and IDOC. Kempf declined to comment. Otter said he was unaware of the lawsuit and needed to do some research before commenting. IDOC declined to comment. Gov. Brad Little’s office did not respond to a request for comment on Friday. Little, then the lieutenant governor under Otter, is also named as a defendant on the complaint.
Kempf resigned as IDOC director in 2016 to take a job as the executive director of the Association of State Correctional Administrators.
Among other allegations in the complaint, the plaintiffs note that pentobarbital is a Schedule II controlled substance under federal law. “That being the case, in order for the drug to be delivered or transferred, a valid prescription written by a licensed practitioner is necessary,” according to the complaint.
It also alleges that pentobarbital must be administered within 24 hours if stored at room temperature and within 74 hours if kept refrigerated. Pentobarbital cannot be frozen because it degrades the drug, according to the complaint.
The drug would have been carried for several hours on a plane and in vehicles before arriving in Boise.
The complaint alleges that neither Kempf nor Tewalt has training in pharmacy science or medicine, so they’d have “no education on the proper transportation and storage of drugs.”
The complaint also alleges that in 2011, IDOC Warden Randy Blades had reached out to a man named Chris Harris in preparation for the Rhoades and Leavitt executions. Harris, based in India, has previously sold drugs for executions. According to the complaint, “Harris has attempted to import drugs into the United States without the requisite approval by the Food and Drug Administration.”
The plaintiffs’ argument is that states’ questionable practices when obtaining lethal injection drugs, “like Idaho’s questionable practice in engaging Mr. Harris,” make it likely they will try to obtain chemicals from unreliable sources.
The latest complaint references a lawsuit filed in 2018 that resulted in an Ada County judge finding that IDOC acted in “bad faith” when responding to execution-related record requests. The case involved Aliza Cover — represented by the ACLU — who filed a lawsuit after her records requests were denied. Cover, a University of Idaho professor, was seeking access to public records on drugs used during the state’s most recent executions.
Information showed that for both the Rhoades execution and the Leavitt execution, IDOC kept separate cash logs for lethal injection expenses, the complaint alleges.
IDOC allegedly kept a third log that was the only information released if a public records request was submitted. The log submitted to the public did not represent the real costs, the complaint says.
As of Friday, the state had not responded in court to the complaint filed on behalf of Creech and Pizzuto.
Creech and Pizzuto
Death warrants have not been issued yet for either of the men who face lethal injection, but the complaint offers multiple reasons for which the defense believes Idaho cannot execute them, including listing a variety of mental and physical problems that Creech and Pizzuto have.
Defense attorneys also argue that Creech and Pizzuto have health conditions that could complicate their executions. Without IDOC telling them what kind of chemicals will be used, there could be unexpected complications.
Pizzuto has multiple health problems, “which collectively make him a high risk to deteriorate during an execution and become critically unstable,” according to the complaint. Pizzuto has reportedly been in hospice care since Nov. 1, 2019, because his life expectancy is considered to be six months or less.
Creech has several diagnosed medical problems as well, and the defense argues that he has been prescribed 22 different medications the past two years. The complaint say “the use of certain lethal injection chemicals might complicate Mr. Creech’s execution as a result of his medications.”
Attorneys offered multiple examples of executions in other states that were botched due to outdated drugs, human error and a variety of other problems.
They cited the example of the 2006 Florida execution of Angel Nieves Diaz, when a misplaced IV line allowed the drugs to leak into Diaz’s soft tissue. The drugs failed to render him unconscious, causing chemical burns on his arm, according to the complaint, and he likely suffocated before the execution drugs ended his life.
The plaintiffs also argue that “IDOC took measures to deceive the public about how it carried out (previous) executions and otherwise obfuscated the same facts.”
The plaintiffs are asking, among other things, that the state wait to execute the two men until they can ensure adequate execution procedures and fully disclose information about the issues raised in the complaint.
Idaho currently has eight offenders on death row, seven men and one woman.
This story was originally published March 6, 2020 at 2:11 PM.
