Sixth Circuit Stays Zagorski Execution, Citing 'Exceptional Circumstances' | Nashville Public Radio

Sixth Circuit Stays Zagorski Execution, Citing 'Exceptional Circumstances'

Oct 10, 2018

Updated 5:30 p.m. This post will be updated as news breaks.

A federal appeals court has intervened in the execution of Tennessee death row inmate Edmund Zagorski. The Sixth Circuit has issued a stay, which could delay the execution scheduled for Thursday night.

The court writes that Zagorski's case "presents exceptional circumstances." The stay is related to an appeal that Zagorski had ineffective counsel at trial when he was convicted of a double murder in the 1980s.

The state could now appeal to the U.S. Supreme Court, so it's unclear whether Zagorski's execution will be delayed.

More: Download the order here

Separately, attorneys for Zagorski and the Tennessee Department of Correction are fighting in federal court during what could be his final hours alive over the electric chair. Zagorski indicated this week that he'd prefer electrocution to the state's current method of lethal injection. TDOC says his request comes too late.

Zagorski didn't opt for the electric chair until Monday, when the Tennessee Supreme Court denied an attempt by death row inmates to change the state's lethal injection protocol to a one-drug method used in several other states. Nearly 30 prisoners argue using one drug, pentobarbital, is simpler and less likely to cause a painful death than the state's three-drug protocol which includes the controversial sedative midazolam.

More: Why The Electric Chair Remains An Option In Tennessee

But in a letter dated Oct. 9, correction officials argued Zagorski missed his opportunity, having been given a deadline of Sept. 27 to make a decision. The prison was not preparing to use the electric chair, which has been called upon only once since 1960, and "would be incapable of implementation consistent with the protocol at this late stage," TDOC general counsel Debra Inglis wrote.

But Zagorski's public defenders say his right to electrocution trumps any kind of scheduling problems. 

"The timing of an inmate's choice to be killed by electrocution do not vitiate his right to choose," writes federal public defender Kellley Henry in a filing Wednesday with the federal courts in Middle Tennessee.

Henry argues it's the least the state could do to accomodate Zagorski's request, given the choice between "10-18 minutes...spent in utter terror and agony," referring to flaws her expert witness has identified in the three-drug lethal injection protocol, or "to be electrocuted which will end his life by burning his organs causing his body to be mutilated and experiencing excruciating pain for (likely) 15-30 seconds."

"Trite literary metaphors like 'Catch 22,' 'Hobson's Choice,' or 'between a rock and a hard place' are inadequate to capture the horribleness of the position that the state has placed [Zagorski] in," she writes.

Henry asked U.S. District Court Judge Aleta Trauger to delay the execution if the electric chair is not an option at the moment. Trauger has ordered the Department of Correction to respond immediately.