Creech v. Idaho Commission of Pardons and Parole, et al.
Filing
40
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECUSAL - IT IS ORDERED that Plaintiffs Motion for Recusal (Dkt. 36 ) is DENIED. Signed by Judge Amanda K Brailsford. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
THOMAS EUGENE CREECH,
Case No. 1:24-cv-00066-AKB
Plaintiff,
v.
IDAHO COMMISSION OF PARDONS
AND PAROLE and JAN BENNETTS, Ada
County Prosecuting Attorney, in her
official capacity,
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR RECUSAL
Defendants.
Pending before the Court is Plaintiff Thomas Eugene Creech’s motion for recusal of the
undersigned pursuant to 28 U.S.C. § 455(a) and the Due Process Clause (Dkt. 36). Having
reviewed the record, I find that the facts and legal arguments are adequately presented and that
oral argument would not significantly aid my decision-making process, and I decide the motion
on the briefs. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B); see also Fed. R. Civ. P. 78(b) (“By rule or
order, the court may provide for submitting and determining motions on briefs, without oral
hearings.”). For the reasons set forth below, I deny Mr. Creech’s motion.
BACKGROUND
In 1995, an Idaho state district court sentenced Mr. Creech to death for murdering another
inmate by beating him to death with a sock filled with batteries. After the state court issued a death
warrant, the Idaho Commission of Pardons and Parole granted Mr. Creech’s petition for a
clemency hearing to decide whether to recommend that Idaho’s Governor commute Mr. Creech’s
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 1
death sentence to a fixed life sentence. The Ada County Prosecutor’s Office (ACPO) was
designated to present on the State’s behalf at the hearing.
The Commission held the clemency hearing on January 19, 2024. At that hearing, attorney
Jill Longhurst of the ACPO made a presentation recommending against commutation. (Dkt. 11-1
at p. 12) (identifying Ms. Longhurst as presenter). Mr. Creech alleges that during the prosecutor’s
presentation, she told the Commission he was guilty of murdering Daniel Walker in 1974. (Dkt. 1
at ¶¶ 52-62). Mr. Creech asserts this statement is untrue. (Id. at ¶ 64). Further, Mr. Creech alleges
that during the presentation, the prosecutor “showed the Commission a slide with an image of a
sock with Mr. Creech’s name” allegedly “written on it” and that by doing so, she “reveal[ed] a
photo of the murder weapon for the first time.” (Id. at ¶ 164; id. at p. 20, § C). Mr. Creech also
alleges that on the same day of the hearing, the ACPO issued a press release stating the Walker
“cold case was solved” and that Mr. Creech had murdered Walker. (Id. at ¶ 63).
On January 29, 2024, the Commission issued a decision denying commutation. On
February 5, Mr. Creech filed this action under 42 U.S.C. § 1983 against the Commission and the
ACPO, naming Jan Bennetts as a defendant in her official capacity as the elected Ada County
Prosecuting Attorney. (Dkt. 1 at p. 1). Mr. Creech alleges his due process rights were violated
during the hearing. 1 On February 8, Mr. Creech moved for a preliminary injunction under
Rule 65(a) of the Federal Rules of Civil Procedure to enjoin his execution during this case’s
pendency and for expedited discovery. (Dkts. 4, 10).
I denied those motions. I concluded that while “some minimal procedural safeguards apply
to clemency proceedings,” a federal court is “not authorized to review the substantive merits of a
1
Although his allegations are lengthy, Mr. Creech’s recusal motion focuses on the
prosecutor’s statements regarding the Walker murder, the photograph of the sock, and the press
release.
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 2
clemency proceeding.” (Dkt. 18 at pp. 8-9) (quotation marks omitted). I found Mr. Creech failed
to clearly show he is likely to succeed on the merits of his due process claim because the
Commission provided him with more than minimal due process in conducting the hearing. (Id. at
pp. 10-11). Further, I concluded that because Mr. Creech does not have a constitutional right to a
clemency hearing, it necessarily follows he does not have a due process right to post-hearing
proceedings including, for example, discovery regarding the clemency hearing. (Id. at p. 12).
Finally, although I declined to review the merits, I noted the hearing minutes contradict
Mr. Creech’s allegations that the prosecutor showed a photograph of the murder weapon; instead,
the minutes state she displayed a photograph of “the matching sock” found in Mr. Creech’s cell.
(Id. at p. 13) (quoting Dkt. 11-1 at p. 20). I also noted that during the hearing the prosecutor
discussed numerous murders which Mr. Creech allegedly committed and that the Commission’s
decision did not appear to have been unduly influenced either by the Walker murder or by the sock
photograph because the Commission did not mention either when explaining its decision. (Id. at
pp.13-14).
The Ninth Circuit affirmed my decision; the Supreme Court denied Mr. Creech’s petition
for a writ of certiorari; and the Idaho Department of Correction later suspended the execution
because the medical team was unable to carry out the lethal injection. (Dkts. 21, 25, 26). Thereafter,
both the Commission and the ACPO moved to dismiss Mr. Creech’s complaint in this case under
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. After the motions
were fully submitted but before I ruled on them, Mr. Creech filed the instant motion to disqualify
me. The basis for Mr. Creech’s motion is my relationship with the Ada County Prosecuting
Attorney, Ms. Bennetts.
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 3
In support of Mr. Creech’s recusal motion, he filed the declaration of an investigator who
attested that, while investigating me in March and April 2024, he discovered my response to the
“Questionnaire for Judicial Nominees,” which I had submitted to the United States Senate
Judiciary Committee in support of my nomination to be a federal district judge. (Dkt. 36-3 at ¶ 3).
In that response, I disclosed that, while I was a judge on the Idaho Court of Appeals:
[A]n individual convicted of a crime in Ada County, Idaho, filed a civil action
against public officials including the Ada County Prosecutor, who is a personal
friend. Because the plaintiff filed the action against her individually (not in her
capacity as the county prosecutor), I determined that my impartiality might
reasonably be questioned and that the issue was incurable. I have searched both the
Court’s electronic database and publicly-available electronic databases and have
been unable to locate the case’s citation, although I believe the appeal was filed in
2019.
(Dkt. 36-2 at p. 22). Further, the investigator attested he discovered video footage of my January
2019 investiture at the Idaho Court of Appeals. (Dkt. 36-3 at ¶ 5). At this investiture, Ms. Bennetts
spoke, and I referred to her as “my dear friend” during my comments. (Dkt. 36-4 at p. 4).
LEGAL STANDARD
Mr. Creech seeks to disqualify me under the Due Process Clause and 28 U.S.C. § 455,
which is the primary source of disqualification law in the federal judicial system. Mr. Creech relies
on § 455(a), which provides that “any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The United States Supreme Court has explained the goal of § 455(a) is “to avoid even the
appearance of partiality.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988)
(quotation marks omitted). The standard for determining impartiality is purely objective. United
States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (applying “objective test”); Clemens v. U.S.
Dist. Ct. for Cent. Dist. of Ca., 428 F.3d 1175, 1178 (9th Cir. 2005) (same).
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 4
The Ninth Circuit has ruled that under § 455(a), the objective inquiry for determining
impartiality is whether a reasonable person with knowledge of all the facts would conclude the
judge’s impartiality might reasonably be questioned or would perceive a significant risk the judge
would resolve the case on a basis other than the merits. Holland, 519 F.3d at 913. A reasonable
person for purposes of the inquiry is a “well-informed, thoughtful observer” and not a
“hypersensitive or unduly suspicious” person. Id. (quoting In re Mason, 916 F.2d 384, 386 (7th
Cir. 1990)); see also Clemens, 428 F.3d at 1178 (stating standard and describing reasonable
person’s nature).
An analysis of whether § 455(a) requires disqualification “is necessarily fact-driven and
may turn on subtleties in the particular case.” Holland, 519 F.3d at 913. The court must be guided
by an independent examination of the unique facts and circumstances and not by a comparison to
similar situations in other cases. Id. Further, “[t]he standard ‘must not be so broadly construed that
it becomes, in effect presumptive, so that recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice.’” Id. (quoting United States v. Cooley, 1 F.3d 985, 993
(10th Cir. 1993)). When the law and the facts do not support a legitimate reason for
disqualification, a judge has a “strong . . . duty to sit.” Clemens, 428 F.3d at 1179 (quoting Nichols
v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)).
Like § 455(a)’s objective standard, “the Due Process Clause may sometimes demand
recusal even when a judge has no actual bias.” Rippo v. Baker, 580 U.S. 285, 287 (2017) (per
curiam) (quotation marks and alteration omitted). Under the Due Process Clause, “[r]ecusal is
required when, objectively speaking, the probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable.” Id. (quotation marks omitted). The
inquiry is “not whether a judge harbors an actual, subjective bias, but instead whether, as an
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 5
objective matter, the average judge in his position is likely to be neutral, or whether there is an
unconstitutional potential for bias.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016) (quotation
marks omitted). The Ninth Circuit has stated that this inquiry “reaches every procedure which
would offer a possible temptation to the average judge to forget the burden of proof or which might
lead him not to hold the balance nice, clear and true between the State and the accused” and that it
“requires a realistic appraisal of psychological tendencies and human weaknesses.” Echavarria v.
Filson, 896 F.3d 1118, 1131 (9th Cir. 2018) (quotation marks and alteration omitted).
ANALYSIS
Mr. Creech asks the Court to enter an order of disqualification “to guarantee the public’s
confidence in the federal judiciary” and to ensure the Court’s decisions will be “perceived as
beyond ethical reproach.” (Dkt. 36-1 at p. 14). In support, Mr. Creech characterizes my relationship
with Ms. Bennetts as, for example, a “thirty-plus-year friendship” and a “social entanglement.”
(Id. at pp. 4, 9). Based on his characterization of the relationship, Mr. Creech argues, among other
things, that I might not want to “saddle” Ms. Bennetts with “the reputational cost[]” of criticism
“for serious ethical breaches” and that I might be “motivated to shield a close friend from the
possibility of discovery uncovering [her] misconduct.” (Id. at pp. 6-7, 10). Mr. Creech’s
characterization of my relationship with Ms. Bennetts, however, is both inaccurate and
unsupported.
Ms. Bennetts and I worked together in the chambers of the Honorable Thomas G. Nelson
of the Ninth Circuit Court of Appeals as law clerks from approximately August 1993 until August
1994, when Ms. Bennetts’ clerkship concluded. My clerkship with Judge Nelson had the hallmarks
of a clerkship with which many current and former law clerks are familiar, including long hours
in chambers, hard work, mutual support, and camaraderie among chambers staff. During the year
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 6
that I clerked with Ms. Bennetts, we became friends. After Ms. Bennetts’ clerkship concluded,
however, I lost touch with her. We did not pursue a personal friendship independent of our shared
clerkship experience.
For example, since Ms. Bennett’s clerkship concluded, she has never been to my home nor
I to hers. We have not taken vacations together, celebrated holidays together, or shared family
occasions together. We have not regularly communicated either by correspondence or by
telephone, and in fact, we have rarely communicated. Occasionally, however, I have seen
Ms. Bennetts at professional events including, for example, at Idaho State Bar events, at a picnic
Judge Nelson organized for his former law clerks, and at a judicial memorial service for him in
2011. None of these encounters were planned. I did, however, briefly reconnect with Ms. Bennetts
after being appointed to the Idaho Court of Appeals in January 2019. Our interactions were limited
to meeting before my investiture, attending the investiture, and meeting again shortly after the
investiture.
While my relationship with Ms. Bennetts began in 1993, my personal interactions with her
since 1994 have been very limited and professional rather than social in nature. Courts have
concluded that such a relationship does not give rise to grounds for disqualification. For example,
in United States v. Lovaglia, 954 F.2d 811 (2d Cir. 1992), the Second Circuit considered the
“temporal context” of a relationship between a judge and lawyer who had been “very close
socially” but whose social relationship had “drifted away and ceased” before the judge was asked
to recuse himself in a case involving the lawyer. Id. at 816. The Second Circuit held that the judge
did not abuse his discretion by refusing to recuse himself because the social relationship had ended
“seven or eight years” before the disqualification issue arose. Id. at 817; see also Moran v. Clarke,
296 F.3d 638, 649 (8th Cir. 2002) (en banc) (considering “depth and duration” of relationship
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 7
including “reciprocal visits to one another’s homes” in analyzing recusal request), abrogated in
part on other grounds by Manuel v. City of Joliet, Ill., 580 U.S. 357 (2017).
In resolving Mr. Creech’s recusal motion, I conclude that a reasonable person with
knowledge of all the facts of my relationship with Ms. Bennetts would not either conclude my
impartiality might be reasonably questioned or perceive a significant risk that I would resolve the
case on a basis other than the merits. See Holland, 519 F.3d at 913 (identifying standard under
§ 455(a)). Further, under the Due Process Clause, I conclude an objective observer would not
conclude the probability of an actual bias on my part is too high to be constitutionally tolerable.
See Rippo, 580 U.S. at 287 (identifying Due Process standard for recusal). Rather, my relationship
with Ms. Bennetts is within the bounds of the legal profession’s ordinary standard of conduct for
two former law clerks who worked closely together for a short period thirty years ago and who
temporarily rekindled that relationship to briefly celebrate a professional achievement. See United
States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985) (discussing the common and desirable
“legal culture friendships among judges and lawyers”). Under such circumstances, “a wellinformed, thoughtful observer” would not question my impartiality. Holland, 519 F.3d at 913.
Despite the limited, professional nature of my relationship with Ms. Bennetts, Mr. Creech
argues that I “have already essentially recognized [my] friendship with [Ms.] Bennetts requires
recusal in cases where [her] conduct is personally implicated.” (Dkt. 36-1 at p. 5). I disagree.
Mr. Creech bases his argument on the fact that, sometime in early 2019 after my investiture at the
Idaho Court of Appeals, I recused myself from an appeal in a case filed against Ms. Bennetts
personally. I have some recollection of this recusal but have been unable to locate the case or any
information related to it, as I noted in my response to the Questionnaire for Judicial Nominees.
(Dkt. 36-2 at p. 22). I recall, however, recusing myself both because I had recent interactions with
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 8
Ms. Bennetts in 2019 and because the case specifically named her personally in her individual
capacity. Contrary to Mr. Creech’s argument, the fact that I recused myself in that case under
different circumstances more than five years ago is not a basis for my disqualification in this case.
See Diversified Numismatics, Inc. v. City of Orlando, Fla., 949 F.2d 382, 385 (11th Cir. 1991)
(“Prior recusals, without more, do not objectively demonstrate an appearance of partiality.”); see
also Holland, 519 F.3d at 913 (noting analysis must be based on unique facts and circumstances
of each case); Lovaglia, 954 F.2d at 816 (considering temporal context).
Moreover, since 2019, I have routinely presided over cases involving the ACPO while
Ms. Bennetts has been the elected Ada County Prosecuting Attorney. 2 Although I have not tallied
the number of or the results in those cases, both the Commission and the ACPO have provided
citations to at least some of the cases. (See Dkt. 37 at p. 4 (citing decisions ruling against ACPO’s
interests); id. at pp. 4-5 (citing decisions addressing allegations of ACPO’s prosecutorial
misconduct); Dkt. 38 at pp. 7-8 (same)). For example, I authored Baker v. State, 494 P.3d 1256
(Idaho Ct. App. 2021). In that appeal, the Idaho Court of Appeals reversed the dismissal of Baker’s
post-conviction petition challenging his conviction for first-degree murder of an infant. Id. at 1262.
The court remanded the case for an evidentiary hearing to determine whether the ACPO had failed
to produce exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), including evidence
that an incarcerated witness received favorable treatment in exchange for his trial testimony against
Baker. Baker, 494 P.3d at 1273-79.
In other words, I have already ruled in favor of a defendant in a first-degree murder case
in a manner raising questions about the ACPO’s ethical behavior during a period when
2
Ms. Bennetts has been the elected Ada County Prosecuting Attorney since 2014. (Dkt. 38
at p. 7 n.2).
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 9
Ms. Bennetts was the elected Ada County Prosecuting Attorney. As in this case, the record in
Baker did not reflect Ms. Bennetts’ involvement in any unethical decisions. 3 Baker’s defense
counsel, however, could have conceivably questioned Ms. Bennetts’ personal conduct on remand.
Nevertheless, I was not motivated to rule against Baker to protect Ms. Bennetts. My ruling in Baker
in 2021 contradicts Mr. Creech’s argument in this case that a reasonable person would believe I
am biased and motivated to rule in the ACPO’s favor to protect Ms. Bennetts.
I am also not persuaded by Mr. Creech’s other arguments that my impartiality is reasonably
questioned in this case. Those arguments include that “the stakes” in this case, the case’s
procedural posture, the applicable legal framework, and the ACPO’s “tone” in response to
Mr. Creech’s allegations justify my recusal. (Dkt. 36-1 at pp. 9-12). Contrary to these arguments,
the applicable standards and analysis remain the same despite that Mr. Creech is subject to the
death penalty. Mr. Creech has not cited any legal authority to the contrary.
Absent a legitimate reason justifying recusal, “a judge should participate in cases
assigned.” Holland, 519 F.3d at 912 (quotation marks omitted). Such is the case here. Accordingly,
based on the foregoing, I deny Mr. Creech’s motion for recusal.
ORDER
IT IS ORDERED that Plaintiff’s Motion for Recusal (Dkt. 36) is DENIED.
July 08, 2024
3
While Mr. Creech accuses Ms. Bennetts personally of unethical behavior in his recusal
motion, those accusations are unsupported conjecture. (See, e.g., Dkt. 36-1 at p. 8) (asserting
Ms. Bennetts is “directly tethered” to wrongful conduct).
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL - 10
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