Thomas Eugene Creech, a death row inmate in Idaho, sought a preliminary injunction to stop his scheduled execution while appealing the denial of his petition for commutation to life without parole. In 1981, Creech killed fellow inmate David Dale Jensen while serving life sentences for other murders. Following a 2023 death warrant, Creech petitioned the Idaho Commission of Pardons and Parole for commutation. The Commission, comprised of seven members, held a hearing in early 2024. Due to a recusal, only six commissioners voted, resulting in a 3-3 tie that denied the petition. Creech filed a federal lawsuit under 42 U.S.C. § 1983, alleging due process violations regarding the lack of advance notice of evidence, the absence of a replacement commissioner, and prosecutorial misconduct involving misleading statements about a separate murder investigation and the authenticity of a piece of evidence. The district court denied the injunction, and the Ninth Circuit affirmed.
The panel applied the limited due process standards governing state clemency proceedings, noting that prisoners have no liberty interest in clemency and that the Constitution requires only minimal procedural safeguards. The court addressed four specific arguments. First, regarding notice, the court held that neither federal precedent nor Idaho law requires advance disclosure of the specific evidence to be presented. Creech received notice of the hearing itself and was not misled about the issues to be considered. Second, the court rejected the claim that a replacement commissioner was required when one recused. Since Idaho law does not provide for such an appointment, the process was not 'wholly arbitrary,' and the court declined to speculate that a different outcome would have occurred. Third, the court addressed claims that the prosecutor misled the Commission regarding a separate murder investigation involving Daniel Walker. While the prosecutor's statements might have overstated the certainty of Creech's involvement compared to the official press release, the record showed the prosecutor clarified Creech had not been convicted. Furthermore, the court found any error harmless beyond a reasonable doubt because the Commissioners' decision relied on overwhelming independent evidence of Creech's multiple murders and lack of candor, not the disputed Walker investigation. Fourth, the court rejected the claim that a slide displaying a sock labeled 'Creech' was fabricated evidence. Even if the prosecutor's description of the sock was inaccurate, the Commissioners did not rely on it; their vote was based on the reprehensible nature of the Jensen murder and Creech's dishonesty. The court concluded Creech failed to establish a likelihood of success on the merits.
The denial of the preliminary injunction stands, leaving the death warrant in place and Creech's execution scheduled for February 28, 2024. The decision clarifies that federal courts will not intervene in state commutation proceedings absent wholly arbitrary conduct or deliberate fabrication of evidence, and it establishes that prosecutorial errors are harmless if the decision rests on independent, overwhelming evidence of the inmate's crimes. The case is remanded to the state for the execution to proceed unless further state proceedings intervene.
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