NASHVILLE – Convicted killer Edmund Zagorski prefers the electric chair. He made that known at trial in 1984 when he asked to die by electrocution instead of being sentenced to life in prison.
He sought it again Tuesday when his attorney sued for his execution to be carried out in the electric chair instead of lethal injection.
In the end, his request to die by electrocution spared his life — for at least a few days.
Three separate legal challenges swirled just hours before his planned execution Thursday at 7 p.m. at Riverbend Maximum Security Institution for the April 1983 double murder of John Dale Dotson and Jimmy Porter.
But ultimately his request for electrocution as the “lesser of two evils,” over a cocktail of three lethal drugs, is what a death penalty expert said was the “game changing” legal maneuver.
Just three hours before the scheduled execution, Gov. Bill Haslam granted Zagorski a temporary reprieve. Haslam cited a federal court’s decision Thursday to consider Zagorski's request for the electric chair.
Case went from 'defensive to offensive'
Zagorski was one of 32 death row offenders suing the state over its lethal injection method.
But when Tennessee's Supreme Court ruled in a 4-1 majority Monday the drugs can be used — even though medical experts said the two of the three drugs torture inmates in their final minutes — Zagorski’s attorneys hit back with a request for the electric chair, which hasn’t been used for an execution since Daryl Horton’s death in 2007.
“That was absolutely, without a doubt, a game changer,” said David Raybin, a Nashville attorney who drafted the state’s death penalty statute in 1976. He also witnessed Horton's execution as his attorney.
“That request changed the dynamics of the case from defensive to offensive. When he (Zagorski) asked for it over lethal injection, he was effectively saying ‘I want to have some control over the way I die’,” he said.
But when the state refused and prepared for lethal injection, U.S. District Judge Aleta Trauger stepped in Thursday morning, ruling the state could not use the drugs until Zagorski's claim had been heard.
Trauger's ruling likely triggered Haslam’s move for reprieve.
“I think the state was ... saying, ‘We can execute you the way we want and when we want,’” Raybin said. “It was demeaning to (Zagorski), demeaning to the judicial process and the victims and their families.”
Court of appeals made rare ruling
During his 1984 murder trial, 28-year-old Zagorski told his defense team he wanted the death penalty and forbid them to contact his family or dig into his past, according to court documents.
But while on death row, Zagorski changed this mind. Thirty-four years and 22 appeals later, he and his new defense team fought for a last-minute court decision to save his life, claiming his trial attorneys made errors in representing him.
Late Wednesday afternoon, the U.S. 6th Circuit Court of Appeals issued a stay to the execution. The state responded early Thursday and asked the U.S. Supreme Court to deny a stay and allow the execution to move forward.
“Ineffective counsel is a very sophisticated argument and it was extremely rare that the court would consider that at this very late stage. I think it took the state by surprise," Raybin said.
But shortly before 7:30 p.m. Thursday night, the U.S. Supreme Court declined to intervene on both ineffective counsel and use of lethal injection.
What will likely play out in the next few days is that the state will cede to Zagorski's request for electrocution and the Tennessee Supreme Court will re-enter a date for an execution.
"It's not technically necessary but the order will probably come down again so that the warden has clear guides on when and what needs to happen," Raybin said.
What's next for executions in Tennessee?
The debate of capital punishment has burned hot in Tennessee. Like many states, Tennessee’s death penalty law was struck down by the U.S. Supreme Court in 1972.
Officials moved quickly to pass new laws governing the punishment in 1975. But legal challenges kept the death penalty on hold, and it wasn’t until 2000 that an execution was carried out.
Six men were put to death by lethal injection and one was executed by electric chair through 2009. A hiatus followed until Billy Ray Irick's execution on Aug. 9.
But Zagorski's introduction of electrocution in his case will likely have no affect on the the debate of execution in Tennessee, according to Raybin.
"I think what it did was change the dynamics of his case ...This case is not the case you can or want to debate capital punishment. Zagorski admittedly did heinous crimes," he said.
Zagorski, posing as a mercenary in South America who worked a stint drilling for oil near New Orleans, lured his victims into the woods with the promise to sell them marijuana, and then he shot them, slit their throats and stole their money.
There was a national manhunt for Zagorski after their bodies were found two weeks later. He was eventually spotted in Ohio and was apprehended after a shootout with police.
"Support for the death penalty here is a mile wide," Raybin said. "This case doesn't change that."
Adam Tamburin and Nicole Young contributed to this report.
Follow Yihyun Jeong on Twitter: @yihyun_jeong.