Tenn. Supreme Court To Hear Lethal Injection Arguments

Posted at 7:46 AM, Oct 03, 2018

It’s a process that’s been described either as legally-permissible constitutionally-backed punishment or as hideous torture carried out under a chemical veil using straps strong enough to restrain a mountain gorilla.  On Wednesday, the five justices of the Tennessee Supreme Court are set to hear arguments in a critical legal battle that could shape the future of the death penalty in Tennessee.

The suit comes from 33 inmates on Tennessee’s death row who are challenging the state’s planned use of a three-drug lethal injection protocol to carry out their death sentences. One of the inmates named in the lawsuit, Edmund Zagorski, is scheduled to be put to death using that protocol next week.

The crux of the case may very well lie in the effectiveness of the first drug used in the execution protocol — Midazolam — a sedative that attorneys for the death row inmates argue does not sufficiently render an inmate insensate, leaving them with the ability to feel the potentially “torturous” effects of the following two drugs; vecuronium bromide, a paralytic; and potassium chloride, meant to stop the heart. 

Attorneys for both the death row inmates and the state have filed briefs with the court outlining their arguments, which the Supreme Court agreed to put on a fast-track schedule, given the impending execution next week. 

Inmates’ Attorneys Seek to Prevent “Torturous” Deaths 

Attorneys for the death row inmates, appealing an earlier decision from a Davidson County chancery court, argue the condemned inmates “will suffer severe pain and anguish” at the hands of the state as the death sentences are carried out. 

In a massive 402-page legal filing — for which the Tennessee Supreme Court granted a special exception to exceed normal page limits — federal public defender Kelley Henry and other attorneys for the death row inmates argue the inmates will die in a “hideous manner,” as they say the sedative in the first drug will not render inmates unconscious, still allowing them to experience “the torture from the second and third chemicals” — an experience that attorneys mince no words in describing: 

“They will drown in their own fluids, suffocate as if buried alive, and then be burned by chemical fire,” the attorneys say in their brief. 

The inmates’ attorneys argue the physical effects of the drugs used in the lethal injection are masked by the second drug used in the protocol — vecuronium bromide — because it is a paralytic, leaving witnesses unaware of the severe pain attorneys say is inflicted on those being put to death. 

In their brief, Henry and the other attorneys paint a colorful — if not grim — picture of the execution of Billy Ray Irick, a sentence carried out by the Tennessee Department of Correction using the three-drug protocol in August for the 1985 rape and murder of a 7-year-old East Tennessee girl: 

“Irick died bound with sufficient straps to restrain a mountain gorilla, with his hands so tightly taped that his fingers would not be seen to move, and with the public protected from the horror of knowing the pain that he experienced in his last minutes on earth. He died, hidden under physical restraint and the chemical veil of a paralytic that ensured that his screams could not leave his mouth. An illusion of peace masked a grim reality.” 

The lawsuit also claims TDOC failed to follow its own execution protocol during Irick’s execution, waiting until just seconds before Irick’s execution began to fill the syringe of Midazolam used to sedate him.  The suit also claims TDOC failed to fill a backup syringe of the drug, to be used in case of any complications with the primary set of chemicals. 

In a separate legal filing, the inmates argue they would prefer an execution by firing squad over the state's current lethal injection method. 

The attorneys for the death row inmates offer an alternative to the currently approved three-drug protocol, saying it could remove the second drug — the paralytic. They also put blame on TDOC for failing to procure an entirely separate drug — pentobarbital — that they say could have been used as a single-drug lethal injection alternative. 

As Zagorski's execution approaches, the inmates' attorneys want the Supreme Court justices to pause the three-drug lethal injection executions altogether, saying “...thoughtful review does not require years. But it cannot humanly be done under the current schedule.” 

State: No Substantial Risk of Pain and Suffering 

“The constitution does not require a painless death.” 

That statement, written in the brief filed by Attorney General Herbert Slatery and other attorneys for the state, encapsulates one of the state’s key arguments in response. 

Attorneys for the state argue, short of torture, “there is some risk of pain inherent in any method of execution,” but the state says the risk does not rise to the level of cruel and unusual punishment. Attorneys for the state argue that designation would only apply to execution methods that are “deliberately designed to inflict pain,” saying there’s no proof that the state is trying to “deliberately torture any death row inmate.” 

The state points to the U.S. Supreme Court and other courts that have upheld the use of the sedative Midazolam in executions, also pointing to the safeguards TDOC has in place after the administration of the sedative: a two-minute waiting period and then a consciousness check of the inmate that involves shouting their name twice and twisting their shoulder muscle. 

State attorneys also blast what they call “outlandish” rhetoric in the death row inmates' brief, describing the potential pain they may feel following the injection of the lethal chemicals, saying use of such “extreme” language underscores the weaknesses in their legal arguments. 

“[The inmates’] use of extreme rhetoric to describe an execution method, e.g., burning at the stake, being buried alive, and the like, adds nothing to the constitutional analysis,” the state’s brief says.  “Although those are surely forms of torture, the incidental physical consequences of an execution are not.” 

But the state argues the death row inmates should lose their case for a separate, more basic, reason: they haven’t shown proof that an alternative to the state’s three-drug injection protocol is readily available.  That available alternative is a key requirement — and, the state’s attorneys argue, the inmates’ burden to prove — to prevail in any claim of cruel and unusual punishment. 

Attorneys for the state argue that TDOC has been unable to procure pentobarbital — the one-drug lethal injection alternative suggested by the inmates — for use in executions. The state credits this to “the realities of the supply of lethal injection drugs diminishing and drug options narrowing for prisons.” 

The Tennessee Supreme Court is scheduled to hear the lethal injection case Wednesday at 2 p.m.  Each side will be granted 45 minutes to present oral arguments in front of the justices -- 15 minutes more than usually allowed.  The justices will then make a decision in the days ahead. 

Edmund Zagorski Execution Scheduled Next Week 

The legal arguments in front of the Tennessee Supreme Court justices will take place just eight days before the scheduled lethal injection execution of Edmund Zagorski, who was convicted of the 1983 murders of two men during a bogus drug deal in Robertson County.

Zagorski shot John Dotson and Jimmy Porter, and then slit their throats. 

Zagorski was later arrested in Ohio following a shootout with police in which he shot a police officer five times and rammed a police car.  A jury gave Zagorski two death penalties, finding that the murders took place during the commission of a robbery and that the murders involved “torture or depravity of mind.”  

Before Zagorski’s trial, court records show he told his attorneys that he preferred the death penalty rather than life in prison, and Zagorski instructed his attorneys to not present any evidence during sentencing that might encourage a sentence of life rather than death. 

But now, Governor Haslam is currently reviewing a clemency application from Zagorski, asking the governor to commute his sentence to life without the possibility of parole – a lesser sentence that Zagorski’s jury did not have the option of sentencing him to in 1984.  The clemency application reportedly includes letters from several jurors who said they would have chosen the sentence of life without parole had they been given that option at the time. 

Editor’s Note: Jason Lamb is one of seven statutorily-required media representatives selected to witness the scheduled execution of Edmund Zagorski on October 11.