Eight days before Tennessee is scheduled to execute another death row inmate, the state's high court met to determine if the lethal injection officials will use to kill him will illegally torture him to death.
That man, Edmund Zagorski, is one of 32 death row inmates who have sued to block a new cocktail of lethal injection drugs.
A trial court rejected the challenge in July, and the Tennessee Supreme Court moved quickly to hear the appeal. During oral arguments Wednesday, the justices focused on the legal requirement that the inmates show a viable alternative to the execution method they challenged.
Attorneys for the inmates argued the state's past acceptance of pentobarbital, and the usage of that drug in other states, showed that at least one alternative was available. They also claimed the state blocked their attempts to question Department of Correction officials who could discuss details about the availability of alternatives.
The state pushed back forcefully, saying officials did not need to show what drugs were available or unavailable. That burden, they said, rests with the inmates.
The justices seemed split on the arguments.
Justices Sharon Lee and Cordelia A. Clark, both Democratic appointees, seemed more receptive of the inmates' arguments and pressed the state with more probing questions.
Chief Justice Jeffry S. Bivins and justices Holly Kirby and Roger Page pressed the inmates' lawyers, suggesting they were skeptical of key elements of the appeal.
Their questions took on added urgency Wednesday — the court could decide the case before Zagorski's Oct. 11 execution date.
A favorable ruling from the high court could delay his execution, although it seems unlikely.
After a trial court rejected the challenge, the Tennessee Supreme Court agreed to hear the case on an fast-tracked timeline that was so unusually quick Lee blasted it as a "rocket docket."
And an August opinion from Tennessee Supreme Court signaled a majority of the justices did not find the challenge persuasive. They rejected a request to stop Billy Ray Irick's Aug. 9 execution while the challenge was pending, saying the inmates were not likely to win on appeal.
Lee disagreed, and issued a scathing dissent. But the rest of the five-member court sided together.
Death penalty challengers argue lethal injection leads to torture
The case is not about whether the death penalty is constitutional. Rather, it asks if the current cocktail of drugs used in Tennessee violates the law.
The inmates' attorneys have presented expert witnesses who said the mixture of drugs do nothing to dull intense pain during an execution. The pain is so severe, they said, that it likely violates the U.S. Constitution, which forbids cruel and unusual punishment.
Lawyers for the inmates have cited several examples of similar lethal injections that tortured inmates, including Irick, who was once the 33rd plaintiff in the suit.
The inmates have questioned the use of midazolam, the first of the three drugs the state administers during executions.
Midazolam is supposed to render inmates unconscious and unable to feel pain, but a slew of experts provided by the inmates said it doesn’t work as intended. The experts said midazolam sedates inmates but does not stop them from feeling the effects of the other two drugs, vecuronium bromide and potassium chloride.
Those drugs lead to torturous pain, they argue — like burning from the inside and being buried alive. Pain that they said Irick suffered while he died.
But the U.S. Supreme Court has held that inmates must present a viable alternative in order to challenge an execution method. That prong of the case dominated debate before Tennessee's Supreme Court.
Three Tennessee inmates could be executed in 2018
The legal challenge is fueled by the state's decision to start scheduling executions again in 2018, nine years after the last execution in Tennessee.
Irick's execution was carried out in August, with Zagorski's scheduled this month. Another death row inmate, David Earl Miller, has a Dec. 11 death date.
Zagorski, 63, has been on death row since his conviction in 1984. A jury found him guilty of robbing and shooting John Dotson, of Hickman County, and Jimmy Porter, of Dickson, in April 1983 before slitting their throats, according to Tennessean archives.
Reach Adam Tamburin at 615-726-5986 and atamburin@tennessean.com. Follow him on Twitter @tamburintweets.