Idaho failed in its attempted execution, Texas killed a man
Idaho could not carry out Thomas Creech's death sentence on Wednesday. Texas did kill Ivan Cantu, who maintained his innocence.
[Update: 12:30 p.m. Feb. 28: The Supreme Court refused to stop Thomas Creech’s execution from proceeding, denying all three of his requests before the justices. There were no noted dissents.]
[Update, 2:15 p.m. Feb. 28: Idaho did not carry out the execution of Thomas Creech on Wednesday, after failing to establish IV access despite trying eight times, per state officials after the fact.]
[Update, 8:45 p.m. Feb 28: Texas executed Ivan Cantu, with the Texas Tribune reporting his time of death as 6:47 p.m. CT. His lawyer did not present any last-minute requests to the Supreme Court, with the Dallas Morning News reporting that she said she could not find any “viable path” for an appeal.]
Original report:
Two states are seeking to exercise their most extreme power on Wednesday: Killing their own people.
Both scheduled executions — of Ivan Cantu by Texas and Thomas Creech by Idaho — highlight the serious problems that exist in the dwindling number of states still trying to carry out executions.
There has only been one execution in America thus far this year — Alabama’s first-in-the-nation nitrogen suffocation execution in late January.
Cantu has maintained his innocence in the double-murder of which he was convicted and has appeals pending seeking a stay of execution so that newly discovered evidence that his lawyers say show the key witness against him at trial lied can be addressed. He has received support from many advocates and celebrities to that end, and CNN has extensively covered the case — including an interview with Cantu from one of its reporters, Ed Lavandera, who went to school with Cantu.
Cantu sought clemency, but the Texas Board of Pardons and Paroles recommended against it. He sought a stay of execution in conjunction with the new evidence from the Texas Court of Criminal Appeals, but that court denied that request earlier Tuesday. And, on Tuesday evening, his request for a stay of execution at the U.S. Court of Appeals for the Fifth Circuit relating to the new evidence also was denied in a unanimous three-judge opinion, authored by Judge Edith Jones, a Reagan appointee.
Primarily, Jones — for herself and Judges Cory Wilson, a Trump apppointee, and Dana Douglas, a Biden appointee — concluded that Cantu did not meet the standard for authorization to file a petition relating to a claim not previously raised.
As of 3 p.m. Wednesday, there is no litigation pending for Cantu, and it appears that his remaining focus is on a temporary reprieve from Texas Gov. Greg Abbott.1
Creech, meanwhile, was sentenced to death by a judge — no jury was involved — for the 1981 murder of a fellow inmate, and the Idaho Supreme Court dismissed his Eighth Amendment challenge to that process as untimely. Creech also would be Idaho’s first execution in nearly a dozen years, and the state’s execution protocol is a black box of secrecy. Either of those two facts independently would be concerning, but, combined, they suggest an unacceptable risk of error.
He has three cases pending at the U.S. Supreme Court. The first petition and application for a stay of execution address the judge-only sentencing scheme; the second petition and stay application address the state’s secrecy; and the third petition and stay application question the constitutional effect of alleged false evidence being presented by a prosecutor at a clemency hearing.
As always, Law Dork will have more on both of these cases as circumstances merit over the next day.
Law Dork in the media
I talked with Andy Levy over at The Daily Beast podcast, The New Abnormal, about my report from last week at Law Dork about the scope of the fallout from June 2022’s Dobbs decision 20 months in. Here’s the episode on Spotify, but you can find The New Abnormal wherever you listen to podcasts. My part starts at 37:50, but I encourage you to listen to the whole episode.
Although I initially had been informed that Supreme Court filings would be forthcoming if necessary, that has not come to pass and does not appear to be coming. This was updated to reflect my most accurate information as of 3:15 p.m. Feb. 28.
Creech is a serial killer. He then killed someone in prison, which sounds like it was in self-defense from the summary I saw, which is why he was ultimately sentenced to die. This was c. 1980.
The various problems (why, for instance, did the parole board deadlock 3-3? why did the seventh person not take part?) aside, the bottom line for me is that there is little public purpose in executing some guy in his 70s after 40+ years.
The problems with executing even that guy underlines the death penalty is just problematic.
These 2 cases certainly seem compelling for a stay. Since 1973, nearly 200 people on death row have been exonerated and released. One naturally has to wonder then how many potentially innocent people we have already put to death.