Haslam has death row inmate’s clemency request
Dave Boucher and Adam Tamburin
As Gov. Bill Haslam considers a request for mercy from a man facing an Oct. 11 execution, state attorneys are blasting legal maneuvers by condemned offenders looking to delay or prevent their own deaths.
Edmund Zagorski, 63, was convicted in 1984 of shooting two men in Roberston County, slitting their throats and stealing their money.
Haslam recently said he’s reviewing a clemency petition from Zagorski, the second such request from a death row inmate considered by the governor this year.
“We have the case before us now,” Haslam said. “We’re reviewing that just like we did with Billy Ray Irick.”
Irick was executed Aug. 9, after Haslam and a bevy of courts declined to stop his death by lethal injection. Before he died, Irick — convicted of the rape and murder of 7-year-old Paula Dyer in 1985 — joined 32 other inmates in a lawsuit alleging the state’s use of toxic chemicals to kill the condemned amounts to unconstitutional torture.
A Davidson County court found death row offenders may feel pain during the execution process, but that pain doesn’t necessarily rise to the level of violating the Constitution. While the Tennessee and U.S. supreme courts declined to stop Irick’s execution, the remaining death row inmates are appealing the Davidson County court’s decision.
Attorneys for the inmates filed a lengthy motion last week. In the filing, they asked the Court of Appeals to consider testimony from a doctor who said Irick was tortured to death, based on a review of statements from witnesses at his execution. They said the evidence bolstered an argument from the trial: that the three drugs used in a lethal injection inflict pain similar to drowning and being set on fire.
Lawyers for the Tennessee attorney general said none of that information should be considered by the appellate court.
The death row offenders are not allowed to simply retry the same case before the appeals court, the state said in a response brief filed Wednesday. And the court should not consider information not presented at the original trial from a “medical opinion offered by an uncross-examined expert, which opinion is based entirely on hearsay and media accounts,” the filing states.
“By filing the motion after having improperly included non-record material in the brief, they seem to be operating not under the rules, but under the old saw: don’t ask permission in advance, just ask forgiveness afterward,” the state argued in the filing.
Dwight Aarons, a law professor at the University of Tennessee who studies death penalty cases, said the new information from Irick’s execution presents “an interesting procedural conundrum because typically you have to have this stuff done at the trial level first.”
Tennessee rules allow new information at the appellate level under limited circumstances. One requirement is that the information can be easily proven.
The inmates say the information from Irick’s execution can be readily proven, while the state argues that the information — that Irick was tortured — is unreliable and debatable.
After reviewing the documents, Aarons said the state seemed to have the stronger argument.
‘Rocket docket’ speeding up appellate process
The appellate schedule is substantially condensed; state Supreme Court Justice Sharon Lee has called it a “rocket docket” that jeopardizes the inmates’ chances for a fair trial.
Noting they are on the same schedule, attorneys for the state say they should not be forced to respond to every issue included in the 360-page filing by the death row offenders.
The Tennessee Supreme Court is set to consider the legal fight over lethal injections during oral arguments scheduled for Oct. 3.