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Condemned man’s lawyers say gov can’t veto commutation board

January 4, 2022 GMT

BOISE, Idaho (AP) — Attorneys for a death row inmate say Idaho Gov. Brad Little doesn’t have the legal authority to overrule the state parole board’s commutation recommendation, and they are asking a state judge to hold off on signing a death warrant for their client.

Gerald Ross Pizzuto Jr., 65, has been on death row for 35 years after being convicted for the July 1985 slayings of two gold prospectors at a cabin north of McCall. He is dying of terminal cancer, and his execution had been scheduled for June 2. But on Dec. 30, the Idaho Commission of Pardons and Parole announced that it had voted 4-3 to recommend that Pizzuto’s sentence be commuted to life in prison.

Little promptly rejected the parole commission’s recommendation, saying that the severity of Pizzuto’s crimes “strongly warrants against commutation.”

On Monday, Pizzuto’s attorneys with the Federal Defender Services of Idaho asked a state judge to hold off on signing a new death warrant until the courts determine if the governor’s veto is legal under the state constitution.

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“The Idaho Constitution gives the governor no say in the commutation process, and Mr. Pizzuto’s attorneys are seeking to stop the state from pursuing a death warrant until the legal questions surrounding the governor’s intervention are fully resolved,” the attorneys wrote in a press release.

Pizzuto’s legal team says the Idaho Constitution allows the governor to postpone the execution of someone sentenced to death by granting a respite or reprieve, but that he cannot increase the penalty beyond what the commission recommends.

When Little announced that he was rejecting the commission’s recommendation in the Pizzuto case, he cited a state law that says the commission’s recommendations don’t go into effect in capital punishment cases unless they are approved by the governor. Pizzuto’s attorneys say the law runs afoul of the state constitution, making it void.

When the Idaho Commission of Pardons and Parole recommended changing Pizzuto’s sentence to life without parole, the panel said the move was justified because of Pizzuto’s “current medical condition and evidence of his decreased intellectual function.” In addition to terminal bladder cancer, Pizzuto has heart disease, diabetes, developmental disabilities and brain injury, his attorneys said.

Clemency requests are rarely granted in the United States, with fewer than two granted each year since 1976 according to the Death Penalty Information Center.

Pizzuto was camping with two other men near McCall when he encountered 58-year-old Berta Herndon and her 37-year-old nephew Del Herndon, who were prospecting in the area.

Prosecutors said Pizzuto, armed with a .22 caliber rifle, went to the Herndon’s cabin, tied their wrists behind their backs and bound their legs to steal their money. He bludgeoned them both.

Pizzuto is one of eight people on Idaho’s death row.