BOISE (Idaho Reports) — The Ninth Circuit Court of Appeals sided with Thomas Creech’s attorneys in an ongoing legal dispute on Wednesday, the same day an Idaho judge signed his latest death warrant.

The decision from the appellate court does not stop the scheduled execution on Nov. 13, but it could make it easier for Creech’s counsel to file a new request for a stay of execution.

The appellate court’s decision revolves around whether U.S. District Judge Amanda Brailsford should have recused herself from a February complaint due to her relationship with Ada County Prosecutor Jan Bennetts. Brailsford said her relationship with Bennetts was not close and they “rarely communicated.”

On Feb. 8, Creech asked Brailsford’s court to suspend his execution until litigation was complete. Later that month, Brailsford denied a preliminary injunction, and with all stays denied, the Idaho Department of Correction moved forward with the Feb. 28 execution attempt.

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Brailsford denied Creech’s request that she recuse herself. The Ada County Prosecutor’s Office at the time defended Brailsford in the challenge.

But, the Ninth Circuit Court of Appeals said in its opinion it is clear that “(Brailsford’s) impartiality might be reasonably questioned under the unique circumstances of this case.”

“The facts in this case leave us firmly convinced that the district court’s failure to recuse herself was based on a clear error of law,” the appellate court wrote in its opinion. The court pointed to public remarks Brailsford once made about Bennetts in 2019.

“Judge Brailsford’s public remarks about Bennetts also go beyond simply commenting on their friendship. At the investiture, Judge Brailsford commended Bennetts for ‘receiv[ing] the Professionalism Award from the Idaho State Bar,’ which—in Judge Brailsford’s words—‘is most apropos of Jan, a consummate professional every day, all day, for her entire career,’” the opinion states.

The circuit court remanded the case back to the district court for reassignment in Creech v Idaho Commission of Pardons and Parole. 

That case initially began over how Creech’s commutation hearing was handled prior to his first execution attempt. In that proceeding, the state commission voted 3-3 to grant a commutation recommendation. A tie vote means the request failed.

Creech’s attorneys argued that Ada County brought up evidence in the hearing that is not accurate, violating Creech’s right to due process, among other claims.

The scheduled Nov. 13 execution will be the second time Idaho has attempted to kill Creech. On Feb. 28, the Idaho Department of Correction called off the most recent execution attempt after its medical team could not establish an IV line to execute him by lethal injection. IDOC has since changed its policies, allowing them access to a condemned person’s central vein, rather than a peripheral vein.

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As of 11 a.m. Thursday, Creech’s execution is still set to move forward.