Death row inmate Edmund Zagorski told prison officials Monday he would prefer to be executed using the electric chair rather than die by lethal injection, according to a member of his legal team.
Zagorski, 63, who is scheduled to die Thursday, made the decision within hours of a Tennessee Supreme Court ruling that approved the state's controversial lethal injection protocol.
"Mr. Zagorski has indicated that if his execution is to move forward, he believes that the electric chair is the lesser of two evils," federal public defender Kelley Henry said in an email Monday night. "We notified prison officials of his decision within two hours of the Tennessee Supreme Court’s decision."
Explaining the decision, Henry referenced the expert testimony during the legal challenge, when doctors said the state's lethal injection drugs would make an inmate feel like they were drowning and burning alive at the same time: "Ten to 18 minutes of drowning, suffocation and chemical burning is unspeakable."
'I have no idea how fast they could do it'
State law allows inmates who were sentenced to death for a crime committed before 1999 to sign a waiver choosing death by electrocution.
Tennessee last used the electric chair in 2007, when death row inmate Daryl Holton was executed. Holton was convicted of killing his three sons and a stepdaughter in 1997.
Holton's attorney David Raybin said Holton chose the electric chair "weeks if not months" before his execution. Raybin said it would take a lot of work to prepare Department of Correction staff for that method of execution.
“The protocol for the electrocution is significantly different,” Raybin said. “They have to train the execution team to go through that.
“I have no idea how fast they could do it.”
Tennessee Department of Correction spokeswoman Neysa Taylor said Monday night she was not aware of Zagorski's decision and did not know if the electric chair would be used.
Raybin, who helped write Tennessee's death penalty statute as a prosecutor in 1976, said Zagorski's decision, just days before he was scheduled to die, seemed legally sound because it was connected to the final decision in his lethal injection challenge. State law does not set a set a deadline for inmates to make their choice.
“Because it’s linked directly to the timing of the (Tennessee) Supreme Court I don’t think the state would be able to legitimately argue that he waited too long,” Raybin said.
“It’s an interesting legal move but I think it also makes a statement,” Raybin said. "There has to be a better way of doing this than this lethal injection. It was designed to be benign, but it’s not."
Zagorski opts for electric chair to avoid 'torture'
Henry provided a copy of the affidavit Zagorski signed Monday, in which he stated that, while he believes that both lethal injection and the electric chair are unconstitutional, "between two unconstitutional choices I choose electrocution."
"I do not want to be subjected to the torture of the current lethal injection method," Zagorski said.
He said he would continue fighting to stop or delay his execution.
Gov. Bill Haslam on Friday refused to commute the Zagorski's sentence. His legal team plans to ask the U.S. Supreme Court to intervene this week.
Zagorski was convicted in 1984 of killing two men in Robertson County. He shot them, slit their throats and robbed them after luring them into the woods by promising to sell them a large amount of marijuana, according to Tennessean archives.
Source: tennessean.com, Adam Tamburin, October 9, 2018
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