Atlanta — A judge on Monday temporarily delayed the execution of a Georgia man who was scheduled to die Tuesday for killing an 8-year-old girl 46 years ago.
Virgil Delano Presnell Jr., 68, killed the girl and raped her 10-year-old friend after kidnapping them as they walked home from school in Cobb County, outside Atlanta, on May 4, 1976. He was scheduled to die by injection. of the pentobarbital sedative at Jackson State Prison at 7 pm Tuesday.
But ruling from the stand at the end of a hearing on Monday, Fulton County Superior Court Judge Shermela Williams issued an order temporarily barring the state from proceeding with the execution on Tuesday.
She was ruling on a lawsuit filed on behalf of Presnell’s attorneys that alleged that by setting an execution date, the state violated an agreement that effectively stayed executions during theand established the conditions under which they could be resumed.
The state’s attorneys indicated they would appeal the judge’s decision so that the execution could proceed as planned.
Earlier Monday, the State Board of Pardons and Paroles, the only authority in Georgia that can commute a death sentence, refused to stop Presnell’s execution.
The lawsuit filed on behalf of the Federal Defenders Program, which represents Presnell, alleges that the agreement said that, with one named exception, executions would not resume until six months after three conditions were met: the expiration of the state court deadline by COVID-19. emergency, the resumption of normal visitation in state prisons, and the availability of a COVID vaccine “for all members of the public.”
The judicial emergency ended in June, but prisons still use a modified visitation policy and children under 5 still can’t get the vaccine, Mike Caplan, an attorney representing the defense program, argued in court.
Jonathan Loegel, an attorney for the state, argued that the settlement was not a binding contract and that the state had “substantially complied” with its terms. He said visitation has “resumed in our new normal” and the vaccine has been widely available for a year.
The agreement said that once the conditions were met, the state intended to seek an execution date for Billy Raulerson, who was sentenced to death for the May 1993 murders of three people in south Georgia, and that Raulerson’s lawyers would have at least three months. notice after conditions were met, the suit says. The attorney general’s office said it would not seek the execution of anyone else included in the deal until at least six months after the conditions were met, the suit says.
In late April, the attorney general’s office informed Raulerson’s attorney that the state intended to schedule Raulerson’s execution on May 17, the suit says. After Raulerson’s attorney reminded a state attorney that he had agreed not to schedule the execution during his previously scheduled vacation, the state attorney told him Raulerson’s execution would not be scheduled until August at the earliest.
A few days later, on April 25, the state attorney notified Presnell’s attorney, Monet Brewerton-Palmer, that the state intended to seek a death warrant for him, the suit says. The order was issued on April 27.
Contrary to the agreement, the attorney general gave Brewerton-Palmer only two days’ notice that they intended to set her execution date, the suit says. That left her with insufficient time to prepare for her clemency hearing on Monday, the suit says.
The clemency hearing lasted only an hour Monday morning and Brewerton-Palmer did not call any witnesses or experts to testify or introduce the dozens of witnesses it would have otherwise provided, Caplan said.
“This is often the best hope a prisoner on death row has of not being executed,” Caplan said. “Your clemency case from him this morning was completely destroyed.”
In a clemency petition filed with the parole board, Brewerton-Palmer argued that she has “profound brain damage” and that she did not understand the damage she was causing the two girls. But due to COVID restrictions on visits and travel and an expert witness who recently suffered a heart problem, she was unable to offer testimony to support that.
Brewerton-Palmer had been working on the Presnell case, but “wasn’t on their radar as an emergency” because of the settlement, Caplan argued. He urged the judge to delay the execution to give Brewerton-Palmer time to complete its investigation and properly prepare for a new clemency hearing.
It is in the public interest to ensure that promises made by the state are kept and to avoid any perception that Presnell would be executed prematurely when his attorney was not prepared to make a clemency case, Caplan said.
Loegel argued that the State has an interest in ensuring the prompt and timely administration of justice and delaying the execution would prevent it. Brewerton-Palmer had known since last fall that Presnell had exhausted appeals from him and therefore had ample time to prepare, he argued.
Williams said it was clear to her that the emailed agreement was meant to be binding on the parties. COVID-related causes prevented the Federal Defenders Program from preparing as it would have and relied on the agreement, she said.
It is clear that Presnell, whom he allowed to intervene in the lawsuit, would be irreparably harmed if the execution was not delayed, the judge said: “We cannot come back from the dead.”