CHATTANOOGA, Tenn. (CN) — In response to a federal judge ordering Tennessee not to use its lethal injection protocol in the execution of condemned inmate Edmund Zagorski, Governor Bill Haslam granted a 10-day reprieve from Zagorski’s execution, which was scheduled for Thursday night.
Zagorski asked the U.S. District Court for Middle Tennessee to be executed by the state’s electric chair rather than a three-drug lethal-injection protocol he said would leave him feeling minutes of pain, and the court ruled in his favor. The governor’s reprieve will last until Oct. 21.
“This brief reprieve will give all involved the time necessary to carry out the sentence in an orderly and careful manner,” Haslam said in a statement.
The last time Tennessee used its electric chair was in 2007, according to the Death Penalty Information Center.
Haslam is the second authority to halt, at least temporarily, the execution scheduled at Riverbend Maximum Security Prison.
The Sixth Circuit on Wednesday stayed the execution based on Zagorski’s claims of ineffective legal assistance.
“At minimum, due process requires that Zagorski be afforded an opportunity to present his appeal to us,” Sixth Circuit Judge Richard Allen Griffin wrote for the 2-1 panel.
After the Sixth Circuit issued the stay, Tennessee filed an application to U.S. Supreme Court Justice Elena Kagan seeking to vacate the order from the Cincinnati-based appeals court.
On Tuesday, Zagorski appealed the denial of his Rule 60(b) motion to the Sixth Circuit, seeking relief from his conviction for ineffective counsel.
Zagorski was convicted in 1984 of the premeditated murder of two men who sought to buy marijuana from him. Zagorski shot the men, slit their throats and took their money.
Zagorski has argued, for example, that his defense attorneys ignored his direction to not contact his family.
Chief Sixth Circuit Judge Guy Cole Jr. joined Griffin in agreeing to stay the execution, but Sixth Circuit Judge Deborah Cook dissented, writing: “As the majority acknowledges, Zagorski’s appeal is virtually unwinnable.”
All three judges admitted Zagorski faces challenges in proving his case.
Griffin did say that: “We acknowledge, as the district court did, that petitioner faces an uphill battle on the merits,” he wrote. “Yet, balancing this factor with the others, petitioner’s motion presents conditions rarely seen in the usual course of death penalty proceedings.”
Cook wrote in dissent that the U.S. Supreme Court has instructed the courts of appeals to consider in their deliberations that states have a significant interest in carrying out their punishments.
The stay came two days after the Tennessee Supreme Court denied a challenge brought by Zagorski and other inmates challenging the constitutionality of the state’s three-drug lethal-injection protocol. Tennessee’s high court said the inmates did not present a viable execution alternative.
Zagorski and the other inmates argued that the first drug, midazolam, did not give sufficient pain relief and they would feel burning and suffocation while the execution was carried out.
On Wednesday, Zagorski sued Governor Bill Haslam, state prisoner Commissioner Tony Parker, and Tony Mays, warden of the Riverbend Maximum Security Prison. Zagorski asked to be killed by electric chair, rather than lethal injection.
Federal public defender Kelley Henry wrote that while courts that have examined the constitutionality of electrocution found it unconstitutional, “if [Zagorski] must die in a ‘dreadful and grim’ manner, he wants his death to be quick, dreadful and grim, instead of 10 to 18 minutes of dreadful and grim. Thus, it is his sincere preference to die by the electric chair.”