Ignoring dec­la­ra­tions by six jurors in Edmund Zagorski​’s 1984 tri­al that they would have spared Zagorski (pic­tured) if they could have sen­tenced him to life with­out parole, Tennessee Governor Bill Haslam reject­ed Zagorski’s peti­tion for clemen­cy on October 5, 2018. In con­junc­tion with the Tennessee Supreme Court’s October 8 rul­ing uphold­ing the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col, Haslam’s deci­sion moved the state clos­er to exe­cut­ing Zagorski on October 11. At the time of Zagorski’s tri­al, Tennessee law required jurors in death-penal­ty cas­es to choose between sen­tenc­ing a defen­dant to death or risk the pos­si­bil­i­ty that he could lat­er be released on parole. The jurors in Zagorski’s case sub­mit­ted sworn dec­la­ra­tions in sup­port of clemen­cy, say­ing that they would have sen­tenced him to life with­out pos­si­bil­i­ty of parole, rather than the death penal­ty, if they had been giv­en the no-parole option. Juror Michael Poole told Nashville Scene, ​“Our con­cern was that at some point in time maybe this man would be released and could actu­al­ly be out in soci­ety and com­mit such a crime again. … [Zagorski] has paid a sig­nif­i­cant price up to this point, I feel, and the con­tin­u­a­tion of his impris­on­ment until he dies of nat­ur­al caus­es I think is pun­ish­ment enough.” Nancy Arnold, anoth­er juror, agreed. “[A]s far as the law was con­cerned, all we could do was what we did. We had no choice of life with­out parole. I would have def­i­nite­ly done that if it had been avail­able.” Zagorski’s clemen­cy plea was also sup­port­ed by cor­rec­tion­al offi­cials who said he has been a mod­el pris­on­er and has reformed dur­ing his 34 years on death row. Despite those state­ments, Gov. Haslam denied clemen­cy, writ­ing that ​“the jury in Zagorski’s case heard the evi­dence at tri­al and ren­dered a unan­i­mous ver­dict in accor­dance with the law at the time and their duty as jurors. Ten courts, includ­ing the Tennessee Supreme Court and the Supreme Court of the United States, have reviewed and upheld the jury’s ver­dict and sen­tence, and the Tennessee Supreme Court has held that the addi­tion of life impris­on­ment with­out the pos­si­bil­i­ty of parole as a sen­tenc­ing option does not affect pre­vi­ous ver­dicts.” The Tennessee Supreme Court on October 8 also removed a hur­dle to Zagorski’s exe­cu­tion, rul­ing 4 – 1 that Tennessee’s lethal-injec­tion pro­to­col is con­sti­tu­tion­al, and that pris­on­ers did not prove an alter­na­tive was avail­able, as required. In response to that rul­ing, Zagorski request­ed that the state exe­cute him with the elec­tric chair, say­ing, ​“I do not want to be sub­ject­ed to the tor­ture of the cur­rent lethal injec­tion method.” In a state­ment, Zagorski’s lawyer, assis­tant fed­er­al defend­er Kelley Henry, said the Tennessee high court deci­sion had left Zagorski to choose between ​“two uncon­sti­tu­tion­al meth­ods of exe­cu­tion.” Describing the prospect of ​“10 – 18 min­utes of drown­ing, suf­fo­ca­tion, and chem­i­cal burn­ing” as ​“unspeak­able,” Henry said Zagorski found the elec­tric chair to be ​“the less­er of two evils.” Zagorski is appeal­ing the Tennessee Supreme Court’s decision.

(Steven Hale, Zagorski Jurors Want Mercy for the Man They Sentenced to Death, Nashville Scene, October 8, 2018; Steven Hale, Haslam Denies Clemency for Edmund Zagorski, Nashville Scene, October 5, 2018; Adam Tamburin, Tennessee Supreme Court rules exe­cu­tions can pro­ceed, Nashville Tennessean, October 8, 2018; Adam Tamburin, Death row inmate sched­uled to die Thursday asks to be exe­cut­ed using the elec­tric chair, Nashville Tennessean, October 8, 2018.) See Lethal Injection, Clemency, and New Voices.

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