Tennessee prison officials are "refusing" to use the electric chair to execute Edmund Zagorski, saying that he waited too long to make his preference known, according to a member of the death row inmate's legal team.
Zagorski, 63, is scheduled to die Thursday. He had requested the electric chair Monday evening after the Tennessee Supreme Court shot down a legal challenge to the state's lethal injection drugs.
"We will explore what recourse we may have on that issue," federal public defender Kelley Henry said in an email.
Zagorski's legal team is continuing the fight for his life on multiple fronts — his attorneys appealed the state high court's ruling, asking the U.S. Supreme Court to take the case and rule Tennessee's lethal injection protocol unconstitutional. They separately asked the 6th Circuit Court of Appeals for an emergency stay.
At the same time, Zagorski has begun to prepare for his death.
Zagorski told prison officials he'd rather face the electric chair than the state's controversial three-drug lethal injection cocktail, which experts said could torture him to death. In an affidavit sent to prison officials, Zagorski framed it as a choice between two evils.
"Between two unconstitutional choices I choose electrocution," he stated, reiterating his belief that both of the state's execution methods violate the Eighth Amendment of the U.S. Constitution, which forbids cruel and unusual punishment. "I do not want to be subjected to the torture of the current lethal injection method."
Explaining the decision, Henry referenced testimony from doctors that the 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."
Prison officials declined to answer questions about Zagorski's request to use the electric chair, citing pending litigation. They did not explain their apparent decision to reject that request Tuesday night.
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.
'There has to be a better way'
State law allows inmates who were sentenced to death for a crime committed before 1999 to sign a waiver choosing death by electrocution. The law does not give inmates a deadline to choose the electric chair — the Tennessee Department of Correction's policy's around the selection are unclear.
The affidavit Zagorski signed said an inmate who chose the electric chair would still be able to change his or her mind up to two weeks before the execution date.
The state's execution team practices the electrocution protocol monthly, and public records indicate the chair was tested in February.
Tennessee last used the electric chair to kill death row inmate Daryl Holton, who asked to die by electrocution in 2007. 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, who helped write Tennessee's death penalty statute as a prosecutor in 1976, said Zagorski's decision, just days before he is scheduled to die, seemed legally sound because it was connected to the final decision in his lethal injection challenge.
“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."
Tennessee Supreme Court rejected challenge without considering pain of lethal injection
The state's high court on Monday rejected a legal challenge of the lethal injection protocol without considering the possibility it could cause excruciating pain.
By a 4-1 majority, the Tennessee Supreme Court ruled the 32 death row inmates who brought the challenge failed to meet a critical bar. In addition to proving the current execution method constituted cruel and unusual punishment, the inmates had to show an alternative was available.
They failed to do the latter, the court ruled, echoing a July order from the trial judge in the case.
The inmates' legal challenge centered on midazolam, the first of three drugs the state administers during lethal injections. Midazolam is supposed to render inmates unconscious and unable to feel pain, but several experts who testified for the inmates said it doesn’t work as intended.
Experts said midazolam sedates inmates but does not stop them from feeling the effects of the other two drugs, vecuronium bromide and potassium chloride, which are meant to paralyze inmates and then stop their hearts. The drugs make inmates feel like they are burning from the inside and being buried alive, the experts said.
The inmates had argued the state could use alternatives that would be less painful, pointing to pentobarbital, which is used in Texas and Georgia. But attorneys for the state said that drug was not available in Tennessee or they would be using it.
The majority said the inmates did not do enough to prove pentobarbital was available here. That failure, they said, was enough on its own to justify denying the challenge.
"As a result, we need not address the plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain," Chief Justice Jeffrey S. Bivins wrote in an opinion for the majority.
Justice Sharon Lee issued a dissent, repeating her criticism of the court's rush to consider the case on a "rocket docket" before Zagorski's execution date.
"This mad dash to the finish line was unnecessary," Lee wrote.
"The Court should not make its decision in haste, but after thoughtful and careful deliberation. The parties and the public deserve no less," Lee said. "Here, the super-expedited schedule imposed by the Court denied the petitioners meaningful appellate review."
Source: tennessean.com, Adam Tamburin, October 9, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde