Edmund Zagorski's Case Illustrates 'Tennessee's Death Penalty Lottery'

The state is set to execute Zagorski on Oct. 11 for 2 drug-related killings in 1983

Tennessee plans to execute Edmund Zagorski on Oct. 11 using the same lethal injection drugs that, according to medical experts, tortured Billy Ray Irick last month. The state's death penalty apparatus is up and running after being dormant for nearly a decade, and Zagorski's will be the 2nd of 3 executions scheduled in Tennessee this year.

A 63-year-old man who's been on death row for 34 years, Zagorski was convicted in 1984 for the murders of 2 Dickson County men, John Dale Dotson and Jimmy Porter. Authorities said the 2 men had planned to buy marijuana from Zagorski but that Zagorski shot them, slit their throats and robbed them. His case, like so many capital cases, includes a host of complicating factors, from his treatment after his arrest to the arguably arbitrary nature of his sentence.

Ahead of his trial, Zagorski reportedly told his lawyers that if he was convicted he preferred the death penalty, and confessed to the crimes. He would later challenge the admissibility of his statements, arguing that police had coerced him into confessing. A court filing from earlier this year lays out the argument that his confession and other damaging statements he made after his arrest - including waiving his right to counsel after first saying he didn't want to be questioned without a lawyer present - were involuntary and made under extreme duress in the Robertson County jail.

"Those statements were the product of inhumane conditions and unconstitutional coercion," the filing reads, "because Zagorski was placed in solitary confinement in an unventilated metal hotbox for seven (7) weeks during the heat of the summer, which decimated him physically and mentally, made him mentally ill and suicidal, and led him to give statements in order to end the unbearable conditions."

RELATED: Tennessee execution: Billy Ray Irick tortured to death, expert says in new filing

The filing goes on to detail how Zagorski's mental health deteriorated as he was held in solitary confinement. He was put on an antipsychotic medication and, on one occasion, "was brought to the emergency room with 'acute anxiety,' he was 'sweating [and] anxious' and in an 'uncontrollable rage,' having beaten his knuckles bloody against the metal wall."

Zagorski's attorneys argue in the filing that no Tennessee court has fully considered the evidence and issues around his pretrial statements. They even raise doubts about Zagorski's guilt.

But further, Zagorski's case is a perfect example of a phenomenon highlighted in a report published earlier this year in the Tennessee Journal of Law and Policy. The Intercept's Liliana Segura wrote about some of the report's findings last month following Irick's execution. Titled "Tennessee's Death Penalty Lottery" and authored by attorneys Bradley MacLean and H.E. Miller Jr., the 97-page document casts Tennessee's death penalty as a "cruel lottery" that metes out the ultimate punishment on an arbitrary basis.

As part of the research for the report, Miller conducted a survey of Tennessee's 1st-degree murder cases. Among his findings, as cited in the filing in Zagorski's case: "Over the past 40 years, Tennessee has convicted more than 2,500 defendants of 1st degree murder. Among those 2,500+ defendants, only 86 defendants (3.4%) received sustained death sentences, and only 6 defendants (or 1 out of 400) were executed."

In the filing, Zagorski's attorneys argue at length that his death sentence in particular is arbitrary and, thus, unjust when compared with the sentences other Tennesseans have received for crimes that are similar or worse. To begin with, they argue that prosecutors in Zagorski's case acknowledged that death was not required for justice - they offered Zagorski 2 life sentences in exchange for a guilty plea, but pursued the death penalty when Zagorski insisted on going to trial. Moreover, they detail how other drug-related homicides have been handled by the state's justice system.

According to the filing: "At least 20 (twenty) other persons convicted of drug-related double homicides (or worse) have not been sentenced to death, but to life imprisonment," and "while triple and double drug-related homicides in Tennessee have resulted in life sentences, there is a long list of persons who have committed triple, quadruple, quintuple, and even sextuple homicides in Tennessee for whom the punishment imposed has been only life imprisonment."

Zagorski's attorneys go on to cite specific cases, such as that of Henry Burrell and Zakkawanda Moss, who are serving life sentences for the murder of 6 people.

Now, after more than 3 decades on death row, Zagorski's execution date is less than 30 days away. He's been scheduled to die before, but this time - in light of the fact that Tennessee executed an inmate a month ago - his chances of being strapped to a gurney and wheeled into the execution chamber seem higher.

Gov. Bill Haslam's office confirms to the Scene that they have received Zagorski's application for clemency and that the governor and his legal staff are reviewing the request. Zagorski's Memphis-based clemency attorney, Robert Hutton, tells the Scene that out of respect for the governor he's not discussing the specifics of the case for now.

Hutton does say, though, that Zagorski is an extraordinarily rehabilitated man who hasn't been written up once for behavior issues in his 34 years in prison. He also notes a problematic detail about Zagorski's sentence: When Zagorski was tried in the early '80s, the jury did not have the option of sentencing him to life without parole. Today, every state with the death penalty gives juries that option.

Meanwhile, the legal fight over Tennessee's controversial new lethal injection protocol continues. A Nashville judge upheld the protocol ahead of Irick's execution, but the dozens of death row inmates challenging are appealing that decision. The Tennessee Supreme Court is set to hear oral arguments in the case on Oct. 3, just 8 days before the state plans to use the drugs again.

Source: Nashville Scene, September 13, 2018

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