ATLANTA — The Georgia Supreme Court has denied the central appeal of a death row inmate whose execution was put on hold last month.
Virgil Delano Presnell Jr. had his execution stayed by a Fulton County judge a day before it was set to happen in May - in a second case alleging Georgia had not met conditions to resume executions, which were suspended during the pandemic.
In the matter of his original murder conviction and death sentence, his lawyers were meanwhile arguing that he is a “cognitively disabled man” whose execution should be prohibited by the U.S. Constitution.
That challenge was filed in Butts County, where the prison that houses death row is located, and denied by the county's Chief Superior Court Judge in May. That judge, Thomas Wilson, rejected their challenge for procedural reasons, saying it failed to cite new law or evidence.
In a brief ruling released on Wednesday, the Georgia Supreme Court upheld that finding.
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This likely means Presnell's ultimate fate is sealed, barring an intervention by the federal court system or Gov. Brian Kemp. He has already been denied clemency by the State Board of Paroles, and it's not clear if there's any avenue to appealing that decision.
However, any execution will not be swiftly forthcoming.
In the second case, Fulton County Superior Court Judge Shermela Williams blocked the state back in mid-May from performing any executions for 30 days, based on the argument that Georgia had violated an agreement with lawyers representing people on death row that effectively put executions on hold during the pandemic and established conditions under which they could resume.
The lawsuit in the second case alleges that those conditions were not met before Presnell's execution was scheduled.
The Georgia Supreme Court is not expected to hear oral arguments in that case until the September 2022 oral argument calendar.
It's not clear if the state, meanwhile, can obtain another execution warrant once the 30 days runs out. Their original execution warrant expired in May, and the Georgia Supreme Court dismissed a separate motion Wednesday by Presnell's lawyers to stay his execution, noting the matter is moot due to the expiration of the original warrant.
Presnell was found guilty of killing an 8-year-old girl, Lori Smith, and raping her 10-year-old friend after abducting them as they walked home from school in Cobb County on May 4, 1976. He was convicted in August 1976 on charges including malice murder, kidnapping and rape and was sentenced to death.
His death sentence was overturned in 1992 but was reinstated in March 1999.
Lawyers had argued he was "profoundly brain damaged" and could not be put to death.
Presnell's mother drank large amounts of alcohol while she was pregnant with him, and a history of serious developmental disabilities is well-documented in his school records, his attorney wrote in his since-denied clemency application, adding that he grew up in an “abusive and unstable environment,” and sexual abuse was “endemic” in his family.
Even when he was arrested, his significant cognitive limitations were on display, the application said. Under questioning by police, he confessed to every open crime against children in the county.
Presnell suffered prenatal brain damage and likely suffers from a fetal alcohol spectrum disorder, his lawyers argued, but that wasn't an available diagnosis at the time of his trial nearly 46 years ago.
“We did not know better in 1976. But we know better today. A just society does not execute the developmentally disabled,” the application said.
A joint statement from the families of the girls after Presnell's execution was put on hold said that it had been "slow and painful waiting for his day to finally come" and that he "needs to be put to death, we have all waited long enough."
Lori's sister said Presnell had "left wounds that will never heal." Her father, Scott Smith, told the parole board that “the grief is as fresh today as it was 46 years ago when she was brutally murdered and taken from her family.”
Her cousin wrote in a letter it was "time to carry out the punishment."
She said her family wants that punishment carried out so they can “stop talking about how Lori died and begin to celebrate her short life.”