Idaho Federal Defense Services attorneys representing Pizzuto filed documents Monday in a similar case requesting a six-month administrative stay of the execution to allow time for litigation for the injunction.
The attorneys said scheduling the execution between Thanksgiving and Christmas makes it harder to call in witnesses and experts who won’t be able to rearrange holiday travel plans.
“It’s just not possible that they all fly to Boise in the blink of an eye caused by the attorney general’s haste to obtain a death sentence,” the attorneys said in a statement.
Scott Graff, spokesman for the Idaho Attorney General’s office, said Tuesday that the office has no comment on pending litigation.
Pizzuto’s lawyers allege that state protocols regarding religious housing in the execution chamber need to be revised. They said government procedures bar spiritual advisers from the execution chamber.
Specifically, Pizzuto’s attorneys are asking the court to order Idaho to change both the state’s execution protocol and the administrative rules governing executions before the state can execute Pizzuto. Changing state administrative regulations is usually a public process with hearings.
Disputes over allowing a spiritual advisor into the execution chamber with Pizzuto have played out in federal court. Attorneys for Idaho said in a Nov. 4 court filing that the state honored Pizzuto’s request and agreed to allow a “spiritual counselor, audible prayers, pastoral touches and the use of religious objects in the execution chamber during the plaintiff’s execution.”
In addition, Pizzuto’s attorneys have also said that Pizzuto has had a history of receiving prescription drugs that make pentobarbital less effective and create the potential for torture, and that he is at increased risk of having a painful heart attack before being sedated.
Pizzuto has spent more than three decades on death row and was originally scheduled to be executed in June 2021. He asked for clemency because he has end-stage bladder cancer, heart disease, diabetes and reduced intellectual function.
The Idaho Commission of Pardons and Parole then changed Pizzuto’s death sentence to life imprisonment. But Republican Gov. Brad Little rejected that recommendation, and the Idaho Supreme Court ruled in August that the governor’s decision to overturn the life sentence recommendation was lawful.
“Reg. Brad Little can render all further legal proceedings unnecessary by accepting the clemency vote,” the Federal Defender Services of Idaho said in its statement.
Pizzuto was camping with two other men near the central Idaho town of McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon who were prospecting for gold in the area.
Prosecutors said Pizzuto, armed with a .22 caliber gun, went to the Herndons’ cabin, tied their wrists behind their backs and tied their legs in an attempt to steal their money. He hit them both with a club, 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 charged with robbing the cabin.