Clemency hearing decision for terminally ill death row inmate now in parole board’s hands

After the second consecutive day of meetings, the fate of a terminally ill death row inmate seeking clemency now rests in the hands of Idaho’s prisons parole board.

The Commission of Pardons and Parole held a more than five-hour closed-door session Wednesday to decide whether to reduce the death sentence of convicted double-murderer Gerald Pizzuto to life in prison.

When a ruling will be issued remains unclear. Regardless, the rationale behind the seven-member board’s eventual decision and vote is barred from public release due to the state’s confidential disclosure laws. Idaho statute permits such deliberations to happen in executive session, restricting them from public consumption.

On Tuesday, the parole board oversaw a nearly eight-hour public hearing to field arguments on whether to remove Pizzuto from death row after 35 years. If board members vote in favor of commutation, Gov. Brad Little must approve the recommendation within 30 days or Pizzuto’s request would be considered denied. If the board votes against the clemency request, Pizzuto would remain poised for execution by lethal injection at a date yet to be determined.

Pizzuto was convicted of the July 1985 killings of Berta Herndon, 58, and her nephew Del Herndon, 37, during a robbery at a remote cabin north of McCall. Today, the 65-year-old inmate is dying of late-stage bladder cancer and also suffers from several other serious ailments that has kept him under hospice care for about two years.

Judy Gonzalski, Berta Herndon’s daughter, addressed the parole board Tuesday, stating that she has been told for the past couple years that Pizzuto could die at any point in prison from natural causes. He hasn’t, which she said made such assertions appear “very disingenuous” in advocating for the execution of her mother’s killer be upheld.

“Now I’m older than she was at her death. It’s just so hard to believe that I’ve outlived her,” Gonzalski said. “I hope you will listen to reason and see that commuting this man’s sentence would be a gross injustice. It appalls me that this could even be considered. It’s time to end it, please.”

Her testimony echoed statements from the Herndon family decades earlier. The prosecutor who outlined the state’s case on Tuesday made reference to Berta Herndon’s husband — also named Del Herndon — who told investigators in 1986 that he wanted Pizzuto to be put to death.

“When they murdered Berta, they took my life away too,” Del Herndon told a pre-sentence investigator, according to a 1991 Idaho Supreme Court opinion. “If I had my way, Pizzuto would get death by firing squad.”

Pizzuto’s family asks state for mercy

Two of Pizzuto’s sisters joined their older brother’s attorneys in instead asking that he be allowed to live out his few remaining days in prison. They cited Pizzuto’s lifelong intellectual disabilities, and torturous childhood, of which his siblings also experienced. Each was subjected to constant beatings and sexual abuse by the children’s stepfather, Bud Bartholomew, they said.

“We lived in hell,” Elsie Rado, one of Pizzuto’s sisters, told the parole board. “It was difficult just to survive. Each of us suffered in ways that few people can begin to understand.”

In the summer of 1985, the Herndons were each brutally struck multiple times in the head with a hammer before they died, according to court records. Two of his accomplices, James Rice and William Odom Jr., took plea deals for shorter sentences and testified against Pizzuto, who was sentenced to death. Rice and Odom Jr. each served 12 years for their role in the slayings, and later released from prison.

Before that, however, Pizzuto also killed two people in Seattle, and was convicted of the kidnapping and rape of a woman in Michigan, said LaMont Anderson, chief of the capital litigation unit at the Idaho Attorney General’s Office, who presented the state’s case Tuesday. In addition, Pizzuto beat his then-wife, who was pregnant, leading to a premature delivery. The child died shortly thereafter, Anderson said.

Pizzuto was sentenced to 20 to 40 years behind bars for the rape conviction in Michigan, but served only nine years in prison. He then fled from his associated probation sentence and landed in Seattle, where his violent criminal behavior continued, Anderson said. Pizzuto was later indicted for the Seattle murders after he was already handed the death sentence for killing the Herndons in Idaho County.

Pizzuto has never shown remorse for any of his crimes, Anderson told the pardons board. That, in and of itself, warrants maintaining the death sentence, he said.

“What has Gerald Pizzuto done to deserve mercy? Absolutely nothing,” Anderson said. “I would suggest that this case screams for justice and you consider the victims and what they endured.”

Bruce Livingston, one of Pizzuto’s attorneys from the nonprofit Federal Defender Services of Idaho, countered that the board had the uncommon authority to intervene and extend leniency. Pizzuto had an upbringing where none was ever offered before, he said.

“This is not the same man who entered the prison decades ago,” Livingston told the parole board. “He’s a dying, old man with serious health conditions that will kill him soon enough. He is a threat to nobody. He lives with pain every day. On this basis alone, mercy is justified.”

Pizzuto, confined to a wheelchair, was present for the hearing alongside members of his legal team at the Idaho Maximum Security Institution, where Pizzuto and six other death row inmates live.

During a portion of the hearing, Pizzuto answered questions from two members of the pardons board about why he felt he deserved clemency, despite his history of violence.

“I’m already dying. Killing me now is a waste of money,” Pizzuto said. “I know I have life (in prison). But I just ask, don’t throw me away. Give me a chance to be good, and I’ll show you I can. And if the choice is for me to live or die, I would just leave it in the lord’s hands.”

The other five members of the parole board declined to make additional inquiries.

A decision 35 years in the making

Pizzuto has remained on death row for more than three decades, avoiding execution on three separate occasions during that time. Idaho’s latest attempt to put him to death came when a state district court judge signed Pizzuto’s death warrant in May, only for the parole board to grant his petition for a clemency hearing two weeks later, which led to yet another stay of execution.

A month earlier, Pizzuto’s attorneys appealed on his behalf to the parole board for the clemency hearing. They cited his extremely abusive childhood, ongoing intellectual issues and worsening terminal illness that saw Pizzuto transition to hospice treatment as reasons to grant the rare review.

His legal team stated in its April petition that Pizzuto long ago accepted responsibility for his crimes and does not wish to make excuses in requesting the “extraordinary” hearing. Rather, they sought the hearing not based on some question of their client’s innocence, but in an appeal to the parole board’s ability to grant mercy.

“This isn’t an innocence case,” Robert Dunham, executive director of the Washington, D.C.-based nonprofit Death Penalty Information Center, told the Idaho Statesman in a phone interview. “This is a case about whether, given his background, he is the worst of the worst offenders or a severely damaged person who was made vulnerable as a result of an excruciatingly horrific upbringing.”

Tuesday’s hearing was believed to be just the second time Idaho held a clemency review for a death row inmate since 1977, when the state reestablished capital punishment. Over that same period, Idaho executed three prisoners, each by lethal injection — the last in 2012.

The only other hearing of its kind occurred in the state in 1996, when the parole board voted 3-2 to recommend the death sentence of convicted murderer Donald Paradis be reduced to life in prison over questions of his innocence. Then-Gov. Phil Batt accepted the majority decision and granted the request.

Anderson, in his closing statement to the parole board Tuesday, remained unmoved that such a recommendation should repeat itself in Pizzuto’s case.

“If Jerry Pizzuto wanted to die of natural causes, he shouldn’t have brutally murdered Del and Berna (Herndon),” he said. “If Pizzuto dies between the time a death warrant is issued and his scheduled execution, so be it. But if he does not die before a scheduled execution, I would suggest that it is God’s will that the judgment of the people of the state of Idaho be carried out.”

The parole board is scheduled to meet again Friday morning once more behind closed doors. A spokesperson for the board said a ruling will not be issued that day.