Death Row Prisoner: Idaho Officials Ran “Misdirection Campaign” to Withhold Info on Lethal Injection
Lawyers for an Idaho death row prisoner accused the state of failing to disclose important details about its execution drugs and blocking mandated depositions. Idaho prevented attorneys from obtaining information critical to death row prisoner Gerald Pizzuto Jr.’s legal defense, his lawyers wrote in a previously unreported filing last week.
Discovery in the case is currently scheduled to end next month, but “obstructionism and mishandling of valid discovery requests” by the Idaho attorney general’s office mean that Pizzuto’s lawyers need more time, said the filing. Pizzuto’s attorneys accused Idaho officials of “unjustifiable” and “potentially sanctionable” conduct — and said they “obfuscated key information on lethal injections so as to mislead.”
“What we’re seeing here is that there is a persistent pattern of obstruct and delay.”
According to Pizzuto’s filing, Idaho officials said they were seeking death penalty drugs, then asserted they couldn’t obtain the necessary chemicals, even though they had purchased lethal injection drugs earlier that year. The state’s misleading responses amounted to a “misdirection campaign,” the filing said. Idaho responded that the state has acted diligently in discovery.
“I think what we’re seeing here is that there is a persistent pattern of obstruct and delay with the hope that the judge will get impatient and make it go away,” Robert Dunham, the director of the Death Penalty Policy Project, told The Intercept.
Pizzuto, who has terminal cancer, is suing the state on the grounds that his execution by lethal injection would violate the Constitution’s prohibition on cruel and unusual punishment. His attorneys have expressed concerns that, like other states, Idaho could be attempting to conduct executions with contaminated or unsafe drugs.
“Defendants have been stubbornly resistant to engaging with lawful discovery requests,” Pizzuto’s lawyers wrote, in a request to extended discovery.
The Idaho Department of Corrections declined to comment on pending litigation. The attorney general’s office did not respond to questions sent by The Intercept. In court, Idaho has depicted its resistance to disclosing information as a necessary means of protecting its drug source. On Wednesday, the attorney general’s office filed a legal response objecting to extended discovery, arguing Pizzuto’s lawyers are seeking to drag out the legal process.
Prisoners’ lawyers regularly seek to obtain information about lethal injection chemicals and details about members of a state’s execution team to ensure that their clients’ Eighth Amendment rights won’t be violated.
The inquiries can allow defense attorneys to find out whether drugs have been stored at properly or received quality testing and determine the training levels of execution medical team members.
These efforts, however, have been heavily impeded, say lawyers in Pizzuto’s case. Prison officials and the attorney general’s office vigorously resisted providing answers to routine questions. Leaders at the Idaho Department of Corrections fought basic inquiries about their lethal injection chemicals, such as questions about the drugs’ countries of origin and testing for sterility.
“They know that lethal injection relies on secrecy.”
When forced to answer, state officials have sometimes offered false information. Previous filings noted that former Department of Corrections director Josh Tewalt misstated the expiration date of execution drugs, which Pizzuto’s lawyers said prevented them further investigating the chemicals. The new filing from Pizzuto’s team paints an even starker picture of how Idaho has obstructed discovery, accusing the state of a “lengthy and persistent history of mishandling proper discovery requests.”
“We see this type of deliberate concealing and misrepresentation again and again in Idaho and other executing states,” Matt Wells, the deputy director of human rights nonprofit Reprieve US, told The Intercept. “States conceal this information from the public, from people on death row, from pharmaceutical companies themselves, because they know that lethal injection relies on secrecy. They know if its brokenness and truth emerges, the inhumanity of lethal injection is laid bare.”
Trouble Getting Drugs?
In 2012, Idaho carried out its most recent death sentence with the execution of Richard Leavitt. Prison officials obtained the drugs used in that lethal injection from an out-of-state pharmacy through a cash payment made in a Washington parking lot.
As the state prepared to execute Pizzuto in October 2022, his lawyers first requested that the government produce all documents “related to obtaining” execution drugs. The next month, the state issued a death warrant, but just two weeks later, officials announced that they could not obtain the chemicals necessary to kill Pizzuto and would let the warrant expire.
Against this backdrop, state legislators took up a bill to authorize firing squad executions when lethal injection drugs were unavailable. In March 2023, during a hearing on the bill, Idaho Deputy Attorney General L. LaMont Anderson testified that the state had not been able to obtain pentobarbital for executions. The firing squad bill passed and was signed into law.
Unbeknownst to Pizzuto’s lawyers, Idaho moved to procure execution drugs just days after Anderson’s testimony. The state generated a purchase order for the lethal injection chemicals and in April 2023 spent $50,000 on the drugs, according to last week’s legal filing. That information would only become apparent earlier this year, after a protracted dispute in court over releasing the information.
For years, states around the country have struggled to obtain pentobarbital made by major pharmaceutical manufacturers, who have taken measures to ensure their drugs don’t get used for lethal injection. As discovery progressed in 2023, Pizzuto’s attorneys worked under the impression that Idaho would be seeking execution drugs made by a compounding pharmacy: businesses that produce custom-made products by combining or otherwise manipulating raw pharmaceutical ingredients.
Idaho officials left open the possibility that it could obtain compounded drugs. In September 2023, Tewalt and a deputy attorney general wrote in a court filing that they were “attempting to acquire any chemical that would be permissible,” according to the state’s execution protocol. The next month, the attorney general’s office said in a filing that “the Idaho Department of Correction does not have the present ability to carry out an execution via lethal injection or firing squad.”
Just two days later, the warden of the state’s death penalty facility obtained 15 grams of pentobarbital in an exchange that took place outside the prison gates. Pizzuto’s lawyers would later learn that the state had obtained pentobarbital manufactured by a pharmaceutical company, not a compounder.
“In short, the defendants effectively spent seven months obligating Mr. Pizzuto and the Court to expend time and resources delving into imaginary discovery disputes about compounded drugs,” Pizzuto’s lawyers wrote in last week’s filing. “During that time, the Idaho Attorney General’s Office (AG)—which represents the defendants here—went out of its way to foster the impression that IDOC lacked a drug source.”
On October 12 — the same day Idaho received the drugs it paid for — the state issued a warrant to execute Thomas Creech, who had been on death row since 1983.
Still under the impression that the state could not have obtained manufactured pentobarbital, defense lawyers alleged that using compounded drugs would violate Creech’s Eight Amendment rights. The court deemed these concerns irrelevant in light of having obtained the manufactured drug and denied Creech’s request for a stay of execution. In February 2024, Creech’s execution proceeded — but was called off after eight failed attempts to place an IV line to deliver lethal injection drugs.
Unlike Creech, the restraints on Pizzuto’s discovery are not dictated by a looming execution. There is no active death warrant, and all the pentobarbital Idaho has obtained since 2023 is now expired. That allows his lawyers to pursue legal challenges to Idaho’s obstruction over a more extended time period — if Pizzuto survives his illness.
Obstruction as Tactic
In the months since Creech’s attempted execution, Idaho has continued withholding information from Pizzuto’s lawyers, even escalating discovery disputes to the 9th U.S. Circuit Court of Appeals.
In filings, Idaho justifies its refusal to disclose information by citing a 2022 secrecy statute that protects the disclosure of information about businesses and people involved in supplying, manufacturing, and dispensing execution drugs. The tactic is art of a broader national pattern: At least 16 states have passed similar secrecy statutes since 2010.
“The more secretive the process, the more likely it is that there will be a botched execution.”
These laws inhibit meaningful oversight, said Robin Maher, the executive director of the Death Penalty Information Center.
“We know that from the data, the more secretive the process, the more likely it is that there will be a botched execution, because the right questions cannot be asked and answered before,” Maher said.
In court, attorneys general try to wield these secrecy laws as a panacea against all manner of disclosures. Most commonly, though, states attempt to block defense attorneys from gaining information that could stop an execution.
“We’ve seen in a lot of other states, obstruction and using the artificial limits created by death warrants as a way of trying to force the courts to move the case along. And then, strategically, using the fact that they’ve been able to obstruct discovery as a way of saying that the defense hasn’t come forward with facts to justify stopping the execution,” said Dunham, of the Death Penalty Policy Project. “It raises serious questions about whether the justice system is willing to do justice.”
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