BOISE, Idaho (KMVT/KSVT) —Earlier this year, the State of Idaho attempted to execute Thomas Eugene Creech by lethal injection. For nearly an hour, the execution team attempted to establish a vein across various parts of his body, but each attempt resulted in vein collapse.

After many attempts, the procedure was halted, and Creech sought for post-conviction relief. He argued that proceeding with the lethal injection using a central line catheter after the execution attempt was stopped, it would constitute cruel and unusual punishment.

The district court dismissed the application because he failed to state a claim of constitutional violation. When Creech appealed, The Idaho Supreme Court held up to the district courts dismissal, as he failed to explain why the execution would be considered cruel and unusual punishment. It was also concluded that Creech could not bring a claim under the Eighth Amendment because he did not propose an alternative method of execution.

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BOISE (Idaho Statesman) — Idaho’s high court dismissed a final state appeal from Thomas Creech on Wednesday, leaving the federal courts to decide whether Idaho can try again to execute its longest-serving death row prisoner after a failed attempt earlier this year.

The Idaho Supreme Court unanimously rejected Creech’s arguments that a second execution attempt would represent cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. In February, the execution team was unable after nearly an hour to find a vein in Creech’s body suitable for an IV to lethally inject him, and prison leaders called off the execution.

Creech became the first-ever prisoner to survive an execution in Idaho and just the sixth in U.S. history to survive one by lethal injection, according to the Washington, D.C.-based Death Penalty Information Center.

Creech alleged in his appeal that another lethal injection attempt, this time possibly with a stepped-up method known as a central line IV, which uses a catheter through a jugular in the neck, or vein in the upper thigh or chest, would violate his constitutional rights. A lower state court ruled against the claim last month.

“The application does not support, with any likelihood, the conclusion that the pain other inmates purportedly suffered in other states establishes an ‘objectively intolerable’ risk of pain for Creech, as required under the Eighth Amendment,” Idaho Chief Justice G. Richard Bevan wrote for the court.

Idaho’s five justices also ruled against Creech in a similar appeal earlier this month.

The court’s ruling Wednesday sided with Idaho Attorney General Raúl Labrador’s office and was determined on legal briefs alone. No oral arguments were scheduled in the appeal.

Justice Colleen Zahn recused herself from Creech’s appeal and was replaced by Senior Justice Roger Burdick, who retired from the court in 2021. Zahn cited her decadelong tenure in the Attorney General’s Office before her appointment to the Supreme Court bench, state courts spokesperson Nate Poppino previously told the Idaho Statesman.

The State Appellate Public Defender’s Office, which represented Creech in the case, did not immediately respond to a request for comment from the Idaho Statesman. The Attorney General’s Office declined to comment Wednesday after the ruling.

The Federal Defender Services of Idaho, which represents Creech in three other active appeals in federal court, did not immediately respond to a request for comment, including over its own federal appeal with the same legal arguments as the case just dismissed by the Idaho Supreme Court.

Creech was set to be executed earlier this month after he was served with a death warrant from Ada County Prosecuting Attorney Jan Bennetts’ office. A federal judge issued a stay and hit pause on the scheduled execution timeline before Idaho could follow through on the state’s first execution in more than a dozen years.

Creech, 74, has been incarcerated for 50 years on five murder convictions, including three victims in Idaho. His standing death sentence stems from the May 1981 beating death of fellow prisoner David D. Jensen, 23, for which Creech pleaded guilty. Before that, Creech was convicted of the November 1974 shooting deaths of two men in Valley County in Idaho, and later the shooting death of a man in Oregon and another man’s death by strangulation in California.

Arizona judge to decide federal appeals

Presiding over Creech’s three pending federal lawsuits is visiting U.S. District Judge G. Murray Snow from the District of Arizona. He stepped in after U.S. District Judge Amanda Brailsford for the District of Idaho was forced to recuse herself from one of Creech’s cases over her decadeslong friendship with Bennetts.

Snow, an appointee of former President George W. Bush, is no stranger to death penalty cases. He has handled several in Arizona, which, like Idaho, maintains capital punishment — though Arizona’s Democratic governor issued a pause on all executions last year.

In a 2016 case, Snow ruled that witnesses to an execution must be allowed to see the entirety of the execution. That includes when a prisoner is brought into the execution chamber and strapped down to a gurney, as well as when chemicals are administered during a lethal injection.

Idaho’s prison system recently revamped its execution chamber to add an “execution preparation room” and cameras with closed-circuit live video and audio feeds to meet similar legal requirements for witnesses. The renovation, associated with possible use of a central line IV, cost the state $314,000.

In another Arizona case in 2017, Snow ruled that prison officials did not have to reveal their suppliers of lethal injection drugs or the credentials of anyone who participates in an execution. The identities of suppliers and members of the execution team are protected pieces of information under Arizona law.

Snow rationalized in his decision that some suppliers may not sell the drugs to the state if they were not granted anonymity, the Associated Press reported. Lethal injection drugs have in recent years become difficult to buy for corrections systems across the U.S., because of mounting public pressure and drug manufacturers prohibiting sales to prisons for use in executions.

Faced with its own challenges obtaining lethal injection drugs, Idaho approved a similar law in 2022 that shields any potential identifying information about drug suppliers, as well as the identities of execution participants, from public disclosure. The next year, Idaho prison officials paid $50,000 to acquire lethal injection drugs for the first time in several years, but withheld from where, citing the new law. The going retail price for the drugs is about $16,000, a doctor of pharmacy declared in court records.

Idaho prison officials later bought a second round of lethal injection drugs for $100,000, but those expired, court records showed. That led to another $50,000 purchase, according to an invoice obtained by the Statesman through a public records request, in the weeks leading up to Creech’s scheduled execution.

Already, Snow has issued rulings in favor of Creech, including the stay of execution in one case. He also granted a doctor who specializes in assessing trauma the ability to evaluate Creech. Labrador’s office opposed the evaluation while Creech’s death warrant was active.

Reassembled Maternal Mortality Review Committee will review 2023 data in next report, due Jan. 31

Newly reassembled after Idaho lawmakers let it disband, a group of Idaho medical experts is preparing a report about pregnant moms who died in 2023.

The Idaho Maternal Mortality Review Committee met Thursday for the first time since being disbanded in 2023.

The committee’s next report is due to the Idaho Legislature by Jan. 31, as required in the new Idaho law that re-established the group.

The review committee’s purpose has been to identify, review and analyze maternal deaths in Idaho — and offer recommendations to address those deaths.

The committee’s last report, using data from 2021, found Idaho’s maternal mortality rate nearly doubled in recent years — and most of those deaths were preventable.

The committee was previously housed in the Idaho Department of Health and Welfare. But the new law that reinstated it placed the committee under the Idaho Board of Medicine, which licenses doctors.

The committee is working to first address maternal death cases in 2023, and will then look into 2022 cases, Idaho Board of Medicine General Counsel Russell Spencer told the Sun in an interview.

That’s “because the Legislature would like the most up to date” information available, Idaho Board of Medicine spokesperson Bob McLaughlin told the Sun in an interview.

Idaho has several laws banning abortion. In the 2024 legislative session, Idaho lawmakers didn’t amend those laws, despite pleas from doctors for a maternal health exception.

How Idaho’s Maternal Mortality Review Committee works

The review committee, under the Department of Health and Welfare, analyzed de-identified medical records, health statistics, autopsy reports and other records related to maternal deaths.

The committee’s work “was not intended to imply blame or substitute for institutional or professional peer review,” according to a Health and Welfare website. “Rather, the review process sought to learn from and prevent future maternal deaths.”

The reinstated committee, under the Board of Medicine, will still analyze de-identified cases. The cases “will not be used for disciplinary actions by the Board of Medicine,” the board’s website says.

An advisory body to the Board of Medicine, the review committee is meant to “identify, review, and analyze maternal deaths and determine if the pregnancy was incidental to, or a contributing factor in, the mother’s death,” the Board of Medicine’s website says.

The board’s website says the committee report “will provide insights into maternal death trends and risk factors in Idaho year over year.”

Next Idaho maternal mortality report to include 2023 data

The review committee hasn’t yet fully reviewed or published findings from Idaho maternal deaths in 2022 and 2023.

In 2023, 13 Idaho maternal death cases were identified for review, and 15 cases were identified in 2022, Spencer told the Sun.

But he said the actual number of maternal death cases to be reviewed could be reduced, for instance, if the person wasn’t pregnant or if the death occurred outside of the year the committee was analyzing.

Spencer told the Sun the committee has already reviewed seven of the 13 maternal death cases identified in 2023.

The committee will also work to ensure that each case is “correctly associated with maternal mortality,” he said.

“If so, then it will go in front of the committee, and the committee and the committee will determine whether it was related to the pregnancy or if it was incidental to the pregnancy,” Spencer said.

The committee plans to meet three times this year, including last week’s meeting, he said.

The committee will likely review 2022 data in the first half of 2025, while it awaits the 2024 data, McLaughlin told the Sun in an email.

“It usually takes a full calendar year to receive relevant documents, input data, and have committee meetings,” he said. “We are doing everything in our power to review 2022’s data as soon as possible, along with the cases from 2023 and the expected cases for 2024 coming to us in 2025.”

How Idaho lawmakers reinstated the committee

In summer 2023, Idaho became the only U.S. state without a maternal mortality review committee, after state lawmakers let the committee disband by not renewing it.

In 2024, the Idaho Legislature reinstated the maternal mortality review committee through a new bill, House Bill 399, that widely passed both legislative chambers before Gov. Brad Little signed it into law.

Work to revive the review committee started soon after Little signed the new bill into law on March 18, McLaughlin told the Sun in an email before the meeting.

The Idaho Board of Medicine hired a coordinator for the review committee, who started Aug. 5, and worked to ensure the committee had access to data to conduct the work, such as receiving information to start case review from the Idaho Department of Health and Welfare’s Bureau of Vital Statistics and working with the federal Centers for Disease Control and Prevention “to execute a data sharing agreement and memorandum of understanding” for its database, McLaughlin told the Sun.

Idaho Medical Association CEO Susie Keller said in a statement that the association was grateful to the Legislature for reinstating “this important health care resource for women and families.”

The medical association “commends the Idaho Board of Medicine for meeting the challenges of re-establishing” the review committee, Keller added.

Who’s on the committee now?

The reinstated Idaho Maternal Mortality Review Committee includes a mix of health care professionals, including doctors, midwives, a nurse and a paramedic.

The members are:

• Dr. Andrew Spencer, a maternal-fetal medicine (MFM) specialist
• Faith Krull, a certified nurse midwife
• Jeremy Schabot, deputy director of training and safety at Ada County Paramedics
• Dr. John Eck, a family physician in Boise
• Joshua Hall, the Nez Perce County coroner
• Dr. Julie Meltzer, who specializes in OB/GYN care
• Krysta Freed, a licensed midwife
• Linda Lopez
• Dr. Magni Hamso, the medical director for Idaho Medicaid
• Dr. Spencer Paulson, a pathologist
• Tasha Hussman, a registered nurse

On Thursday, the committee named Eck as chair and Spencer as vice chair, on voice votes without any opposition.

The committee then entered executive session — where the public is not allowed to attend — to review cases.

The previous iteration of Idaho’s Maternal Mortality Review Committee conducted most of its work in executive session, similar to other states, McLaughlin told the Sun in an email.

“To do its work, the (Maternal Mortality Review Committee) must review records of hospital care, psychiatric care, and other medical records, all exempt from disclosure” under Idaho law, McLaughlin said. “We also want to encourage open and free discussion among the members of the committee, which an executive session helps to promote.”

Two past committee members re-applied, but weren’t selected

Four of the review committee’s current members had served on the Idaho Maternal Mortality Review Committee when it concluded its final report in 2023, including Hamso, Meltzer, Freed and Krull.

But two doctors who had previously served on the committee applied and were not selected. Both of those doctors — Dr. Stacy Seyb and Dr. Caitlin Gustafson — have been involved in lawsuits against the state of Idaho or state government agencies related to Idaho’s abortion bans.

Upon request, the Idaho Board of Medicine provided the list of committee applicants to the Idaho Capital Sun. But McLaughlin said the Idaho Public Records Act did not allow the state medical licensing agency to “provide a more specific answer” about reasons applicants weren’t selected.

The head of the Idaho Academy of Family Physicians, in a statement, said the organization was “deeply invested” in the review committee’s work.

“The IAFP is deeply invested in the continued work of the (Maternal Mortality Review Committee) in its new iteration and hopes to see the high-quality data analysis and reports that were provided by previous (review committees). This work is crucial to supporting maternal health and well-being in Idaho,” organization executive director Liz Woodruff said in a statement.

Russ Barron, administrator of the Board of Medicine’s parent agency called the Division of Occupational and Professional Licenses, made the appointments “in consultation” with the Board of Medicine, McLaughlin told the Sun.

Committee members were selected based on their education, training and clinical expertise, the Board of Medicine’s website says.

Asked why some past review committee members weren’t selected to serve on the new committee, Spencer told the Sun, “there’s nothing wrong with anybody who wasn’t on.”

Spencer said he couldn’t discuss reasons why specific people weren’t selected.

“We’re very, very grateful for everybody who’s ever served on this committee. We had enough interest in the committee that we were able to fill the different slots with people who hadn’t served before and provide new perspectives,” he told the Sun.

This article was written by Kyle Pfannenstiel of the Idaho Capital Sun.