Attorneys for a Tennessee death row prisoner were trying to spare him from lethal injection and they succeeded — though not the way they hoped.
Instead of getting the needle, Edmund Zagorski is scheduled to die in the electric chair on Nov. 1.
If the execution goes forward, he will be only the second person to be executed that way in Tennessee since 1960.
His case illustrates how hard it is for states to find ways to execute prisoners that courts will deem humane; the challenge attorneys face trying to save their clients from execution; and the frustration of some judges at those attorneys’ maneuverings.
Zagorski was sentenced to die in 1984 for robbing and killing two men during a drug deal. Earlier this month Tennessee’s Supreme Court turned down his challenge to the state’s execution drugs.
“I really thought we would prevail,” said his attorney, Kelley Henry. “I believe in our proofs. I believe we have shown this is torture.”
Tennessee adopted lethal injection in 1998, and Zagorski was scheduled to die that way in January 2011. Legal challenges to the state’s drug protocols caused the Tennessee Supreme Court to halt his execution, though.
Since then, Tennessee has changed its execution protocols several times. The three-drug midazolam protocol the state adopted in January is its third mix of lethal-injection drugs.
Henry said the repeated changes in the protocols have in effect neutralized each legal challenge to lethal injection.
“Every time we’ve brought a challenge, they have changed the protocols because of issues we’ve brought up,” Henry said. However, while previous challenges to lethal injection focused on “‘What if something goes wrong?’ Now it’s, ‘What if it goes exactly as planned?’ We think it is torture.”
Most recently, Henry has argued in court that Tennessee’s three-drug protocol, including the sedative midazolam, causes a prolonged and excruciating death. The state’s high court declined to review that evidence, ruling instead that Henry failed to show a more humane alternative was readily available.
Henry argued for using pentobarbital, which was Tennessee’s execution drug of choice until earlier this year. The Department of Correction says it can no longer obtain the drug.
In part, that’s because opponents of the death penalty have pressured manufacturers to prevent the drug’s use in executions.
Kent Sheidegger is legal director of the California-based Criminal Justice Legal Foundation, which supports capital punishment. He said attorneys for death row inmates engage in a war of attrition. “They raise one difficulty after another.”
The strategy has helped some individuals, however, the larger trend across the country has been counterproductive, he said.
“Their efforts to block the preferred drugs have resulted in a difficult situation where states are ending up using drugs that are more questionable,” Sheidegger said.
Zagorski was convicted of shooting John Dotson and Jimmy Porter and slitting their throats in 1983.
In Tennessee, condemned inmates whose crimes occurred before 1999 can choose to die by the electric chair. Tennessee is one of six states that allow such a choice, according to data from the Death Penalty Information Center. Three other states allow the electric chair as a backup method, although supreme courts of two states — Georgia and Nebraska — have ruled its use unconstitutional.
Nationwide, only 14 people have been killed in the electric chair since 2000.
Robert Dunham is executive director of the Death Penalty Information Center, which doesn’t take a position on capital punishment though is critical of the way it is administered.
He said attorneys who defend death row inmates have seen their options shrinking, thanks to state secrecy laws around executions and unfavorable federal court decisions.
“What do you do when you have really strong facts and a court that won’t listen?” he asked. “That’s the position Edmund Zagorski is in.”
After Tennessee’s Supreme Court ruled against Zaroski’s midazolam challenge, the prisoner signed an affidavit asking to die by electrocution. A typed addendum cites the 8th Amendment ban on cruel and unusual punishment, stating, “I believe that both lethal injection and electrocution violate my rights.”
Zagorski believes electrocution will be quicker and less painful, Henry has said.
The choice is one she had hoped Zagorski would not have to make, though.