(CN) — With no reprieve from the Ninth Circuit, Idaho’s longest-serving death row inmate faces execution Wednesday for killing a fellow prisoner while serving multiple life sentences for other murders.
Convicted serial killer Thomas Creech, 73, was serving two life sentences for first-degree murder when he used a battery-filled sock to attack and kill fellow inmate David Jensen. The murder landed him on death row a second time, as his first death sentence was waived when the U.S. Supreme Court barred automatic death sentences in 1976.
Since his arrest in November 1974, Creech has been convicted of four murders and has admitted to killing many more people.
On Saturday, Creech’s attorneys asked a Ninth Circuit panel in San Francisco to delay the execution by lethal injection scheduled for Feb. 28. The two last-minute appeals arrived after U.S. District Judge Amanda Brailsford denied Creech’s motions for discovery and a preliminary injunction that would have challenged his unsuccessful clemency hearing last month.
According to Creech’s motion for a preliminary injunction, Ada County prosecutors violated his constitutional right to due process by failing to provide adequate notice of the material they presented at his clemency hearing. This included “false evidence” connecting him to the 1974 murder of Daniel Walker and an image of the battery-filled sock he used to kill Jensen labeled “Creech.”
“In sum, the prosecution created the illusion of a new murder conviction as it prepared for the commutation hearing,” Creech’s attorneys wrote. “Then, for the first time at the hearing, the prosecution revealed never-before-seen images of the murder weapon that mysteriously appeared as the prosecution prepared for the commutation hearing.”
Brailsford denied Creech’s motions on Feb. 23 because he had not shown a likelihood of success on the merits and that the balance of equities and the public interest weighed against his injunction. The Ninth Circuit unanimously agreed with Brailsford on Saturday, ruling that no legal precedent requires advance notice of evidence used in commutation hearings.
“Creech received notice of the hearing itself,” the panel wrote, adding that he was not misled as to the issues that would be considered by the Idaho Commission of Pardons and Parole either.
The panel rejected Creech’s argument that he was entitled to a replacement commissioner after one of them recused and that, even if such a rule existed, it wouldn’t have changed the commission’s vote to deny his commutation.
“The commissioners who voted to deny commutation reasoned that Creech is not ‘worthy of grace or mercy’ for several reasons, including ‘the coldblooded nature of David Dale Jensen’s murder,’ as well as Creech’s ‘unwilling[ness] to completely disclose the number of people he has killed,’” the judges wrote. “The commissioners further opined ‘that the Jensen family would not receive justice if Mr. Creech received clemency, and above all else that they deserve closure in this case.’ Overwhelming evidence supports those conclusions.”
The panel also rejected Creech's claim that prosecutors presented fabricated evidence in the form of the sock photograph, noting the photograph came up at all because Creech claimed he had accepted responsibility for his actions and was remorseful.
“ACPA responded by pointing to a prehearing statement that Creech gave to investigators, where Creech contradicted the sentencing judge’s 1995 factual finding that the murder weapon was his by stating that it belonged to another inmate,” the judges wrote. “ACPA introduced the slide with the labeled sock to refute Creech’s prehearing assertion that the murder weapon never belonged to him.”
The panel found the commissioners who voted to deny Creech’s commutation never mentioned the sock or his unwillingness to accept the 1995 factual findings around the murder weapon’s ownership. They denied him commutation due to the nature of Jensen’s murder and their concern around Creech’s “lack of candor about the number of people he had murdered and justice for Jensen’s family.”
“Creech has failed to establish a likelihood of success on the merits, and we find no legal or clear factual error in the district court’s evaluation of the remaining preliminary injunction factors,” the panel concluded. “We dismiss as moot Creech’s motion for a stay pending appeal.”
The panel's opinions came from U.S. Circuit Judges Jay Bybee, Morgan Christen and U.S. Senior Circuit Judge William Fletcher, appointed by George W. Bush, Barack Obama and Bill Clinton, respectively. The other opinion, also published on Feb. 24, rejected Creech’s claim that the state of Idaho failed to inform him of the source of its lethal injection drug, pentobarbital, indicating that it may be a recalled product from the defunct pharmaceutical company Akorn or other unreliable sources.
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