Atlanta— On Monday, a judge temporarily postponed the execution of a Georgia man who was due to die on Tuesday for killing an 8-year-old girl 46 years ago.
Virgil Delano Presnell Jr., 68, killed the girl and raped her friend of 10 years after kidnapping them as they were walking home from school in Cobb County, outside Atlanta, on May 4, 1976. He was scheduled to die. by injection of the sedative pentobarbital at Jackson State Prison at 7pm Tuesday.
But 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 suspended executions for the duration of the execution.and established conditions under which they could resume.
State attorneys indicated they would appeal the judge’s decision so that the execution could proceed as planned.
Earlier on Monday, the State Board of Pardons and Parole, 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 Defender Program, which represents Presnell, alleges that the settlement said that, with one named exception, executions would not resume until six months after three conditions were met: the expiration of the COVID-19 court period of the state emergency, the resumption of normal visitation in state prisons, and the availability of a COVID vaccine “to all members of the public”.
The court emergency ended in June, but prisons are still using a modified visitation policy and children under age 5 still cannot access the vaccine, Mike Caplan, a lawyer representing the advocacy program, argued in court.
Jonathan Loegel, the state’s attorney, argued that the agreement was not a binding contract and that the state “substantially complied” with its terms. He said visitation “has resumed in our new normal” and that 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 murder of three people in South Georgia, and that Raulerson’s attorneys would receive at least three months notice after the conditions have been met, the lawsuit says. The attorney general’s office said it would not seek the execution of any other person covered by the settlement until at least six months after the conditions were met, the lawsuit says.
In late April, the attorney general’s office informed Raulerson’s attorney that the state intended to schedule Raulerson’s execution for May 17, the lawsuit says. After Raulerson’s attorney reminded a state attorney that she had agreed not to schedule the execution during her previously scheduled vacation, the state attorney told him that 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 an execution warrant for him, the lawsuit says. The warrant was issued on April 27.
Contrary to the settlement, the attorney general gave Brewerton-Palmer only two days’ notice that they intended to set its execution date, the lawsuit says. That left her with insufficient time to prepare for her leniency hearing on Monday, the lawsuit says.
The leniency hearing lasted just an hour on Monday morning and Brewerton-Palmer did not call any witnesses or experts to testify or present the dozens of witnesses she would have provided, Caplan said.
“This is often the best hope a death row inmate has of not being executed,” Caplan said. “Her case this morning for mercy was completely destroyed.”
In a plea for leniency filed with the parole board, Brewerton-Palmer argued that he is “deeply brain damaged” and did not understand the damage he was doing to the two girls. But because of COVID restrictions on visits and travel and an expert witness who recently suffered a heart condition, she was unable to offer testimony to support this.
Brewerton-Palmer was working on Presnell’s case but “wasn’t on their radar as an emergency” because of the deal, Caplan argued. He asked 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’s 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 file a leniency case, Caplan said.
Loegel argued that the state has an interest in ensuring the prompt and timely administration of justice and that delaying execution would prevent this. Brewerton-Palmer has known since last fall that Presnell had exhausted his resources and therefore had ample time to prepare, he argued.
Williams said it was clear to her that the emailed agreement should be binding on the parties. The Federal Defender Program was prevented by COVID-related causes from preparing as it should and relied on the settlement, she said.
It is clear that Presnell, whom she allowed to intervene in the process, would suffer irreparable harm if the execution was not delayed, the judge said: “We cannot come back from the dead.”