STATE OF TENNESSEE
DEPARTMENT OF CORRECTION
SIXTH FLOOR RACHEL JACKSON BUILDING
320 SIXTH AVENUE NORTH

- NASHVILLE, TENNESSEE 37243-0465
OFFICE (615) 253-8147 0 FAX (615) 741 -9280

October 9, 2018

HAND DELIVERED AND SENT VIA EMAIL
Kelley J. Henry
Of?ce of the Federal Public Defender
Middle District of Tennessee
810 Broadway, Suite 200
Nashville, TN 37203-3805

Re: State of Tennessee v. Edmund Zagorski, M1996-00110-SC-DPE-DD
Dear Ms. Henry:

This letter is in follow-up to a document captioned ?Af?davit Concerning Method of
Execution? which was delivered to Warden Tony Mays at approximately 5:30 pm. on October
8, 2018, and with which Mr. Zagorski purports to waive his right to have his October 11
execution carried out by lethal injection and purports to choose to be executed by electrocution.
The purported waiver and election are ineffective and, even if effective, would be incapable of
implementation consistent with the protocol at this late stage. See West v. Scho?eld, 468 
482, 493 fn.13 (Tenn. 2015).

The Af?davit Concerning Method of Execution is incorporated in and is part of the
Department?s execution protocol. Because you insisted, in your letter to the Warden of Aug. 30,
2018, that he refrain from presenting the form Af?davit to your client as called for by the
protocol, the Department served the form Af?davit by email on September 11, 2018, to you on
behalf of Mr. Zagorski for his consideration and signature. Since the Af?davit was not
completed and returned to the Department?as necessary for compliance with the protocol?by
close of business on September 27, 2018, pursuant to the Tennessee Supreme Court?s 7/10/18
Order, the Department noti?ed you by letter dated September 27, 2018, that Mr. Zagorski?s
execution would be carried out by lethal injection.

The Af?davit apparently signed by Mr. Zagorski on October 6, 2018, and served upon
the Warden yesterday, October 8, is ineffective as a waiver of execution by lethal injection since
it contains unilateral alterations to the form that render any waiver impermissibly conditional and
in direct contravention of established Supreme Court precedent in Stewart v. LaGrand, 526 US.
115 (1999). Moreover, as the Tennessee Supreme Court has acknowledged, the lethal injection
and electrocution protocols ?prevent the Commissioner and TDOC from undertaking any last-

minute switch from lethal injection to electrocution.? See West v. Schofield, 468 482,
493 fn.13 (Tenn. 2015).

As a result, please be advised that, pursuant to Tenn. Code Ann. 40-23-114 and
Tennessee?s Lethal Injection Manual (revised July 5, 2018), Mr. Zagorski?s execution scheduled
for Thursday, October 11, 2018, will be carried out using a three?drug combination consisting of
Midazolam, Vecuronium Bromide, and Potassium Chloride.

Sincerely,

mm 74. 

Debra K. Inglis
Deputy Commissioner of Administration and General Counsel