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This section contains the nature of the case and procedural background.

Creech (D) was a serial killer that admitted to killing at least 26 people. Another victim was killed while D was in jail for life. A fellow inmate swung a sock filled with batteries at D. D took that weapon away, and the inmate then attacked D with a toothbrush with a razor blade attached to it. D kept hitting the inmate with the sock filled with batteries and eventually shattered a plate in the inmate’s head. While the inmate was down, D kept kicking him in the head and throat. The inmate died the next day. D was tried and convicted of that murder and then sentenced to death. D appealed the sentence in that the term under in the sentence guidelines 'utter disregard' circumstance is unconstitutionally vague. The Idaho Supreme Court reaffirmed a limited construction of the phrase. D filed a writ of habeas corpus and the Court of Appeals for the Ninth Circuit agreed that the phrase was unconstitutionally vague. The Court of Appeals thought that the phrase required a subjective determination.

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