Zagorski’s execution by electrocution is set to proceed following the decision taken by the 6th Circuit Court of Appeals late Wednesday, Oct. 31, the Tennessean reported.
The 63-year-old death row inmate’s legal challenge focused on objections to the constitutionality of the electric chair. He opted for this method of execution over a lethal injection.
In Tennessee, condemned inmates whose crimes occurred before 1999 can choose to die by the electric chair. Tennessee is one of six states that allow such a choice, according to data from the Death Penalty Information Center. Three other states allow the electric chair as a backup method, but the supreme courts of two states—Georgia and Nebraska—have ruled its use unconstitutional.
Zagorski requested death by electrocution on Oct. 8 after the Tennessee Supreme Court upheld the state’s controversial lethal injection cocktail. The three-drug midazolam protocol the state adopted in January of this year is Tennessee’s third mix of lethal injection drugs, following legal challenges to each mix of drugs on grounds that it could result in a painful death.
Kelley Henry, Zagorski’s lawyer, said the repeated changes in the lethal injection protocols have in effect neutralized each legal challenge to this form of execution.
“I really thought we would prevail,” said his attorney, Kelley Henry, about the recent legal challenge. “I believe in our proofs. I believe we have shown this is torture.”
Henry said Wednesday night she plans to appeal the 6th Circuit’s decision to the U.S. Supreme Court Thursday morning, according to the Tennessean.
Earlier statements made by Zagorski suggest his objections to execution by lethal injection center on the method’s alleged painful nature.
“I don’t want to be tortured with those drugs,” he told the Nashville Scene in writing, “but I am not afraid of death.”
But the electric chair may not provide the reprieve from suffering Zagorski is seeking.
Fred Leuchter, the man who built the electric chair that is expected to be used to put Zagorski to death told the Associated Press that he worries his device will malfunction.
Leuchter’s concern is that Tennessee’s chair will fail because of changes others made to it after he was no longer allowed to service it.
“What I’m worried about now is Tennessee’s got an electric chair that’s going to hurt someone or cause problems. And it’s got my name on it,” Leuchter said. “I don’t think it’s going to be humane.”
Gov. Bill Haslam said he is confident the execution can be carried out without problems.
“I have a great deal of confidence in our Department of Correction folks. … We’ve spoken with them regularly and they’ve assured us,” he said, saying that the chair is ready.
The last Tennessee inmate to be executed in the chair was Daryl Holton, who also chose the method, in 2007.
Zagorski was convicted of shooting John Dotson and Jimmy Porter and slitting their throats in 1983.
The Tennessee Supreme Court issued an order on Oct. 22 setting Zagorski’s execution for Nov. 1.
His last chosen meal, according to the Tennessean, was pickled pig knuckles and pig tails.
The Associated Press contributed to this report.