ATLANTA — A Georgia Supreme Court decision issued Tuesday adds a potentially significant delay to the execution of a death row inmate who was scheduled to be put to death earlier this year, before a Fulton County court intervened.
Virgil Presnell Jr. was scheduled for execution in May. However, a Fulton County judge ruled that the state had violated a written agreement with the Federal Defender Program to temporarily put executions on hold during the pandemic, in moving to resume executions before the agreed-upon conditions had actually been met.
The Georgia Supreme Court's ruling on Tuesday sided with the Fulton County judge. 11Alive reached out to the Georgia Attorney General's Office for its reaction to the ruling. The office said they are reviewing the opinion but are otherwise unable to comment on pending litigation.
The ruling creates several new potential hurdles for the state to clear in order to conduct an execution of Presnell, who was convicted in Cobb County in 1976 of killing an 8-year-old girl and raping her 10-year-old friend.
One of those is a six-month notice the state was to give the Federal Defender Program, saying that three conditions for resuming executions had been met and that they would now resume. That would seem to mean even if such notice were given today, at least six months would have to pass before the state could schedule an execution for Presnell.
"The State does not argue that it substantially complied with this six-month notice provision, and the undisputed evidence shows that the appellees did not receive their bargained-for notice in order to adequately prepare for Presnell’s clemency proceedings," the Georgia Supreme Court ruling states.
Presnell was denied clemency this year by the State Board of Pardons and Paroles. Attorneys for Presnell have argued that he is a “cognitively disabled man” whose execution should be prohibited by the U.S. Constitution, but those arguments have been denied both by the parole board and an earlier Georgia Supreme Court decision.
However, the state Supreme Court's ruling indicates Presnell could receive a second clemency hearing, as the parole board generally schedules one before every execution regardless of whether the death row inmate's case has already been heard before.
The second major hurdle the state will now face has to do with the Georgia Department of Corrections' current visitation policy.
The three original conditions agreed upon between the Georgia Attorney General's Office and the Federal Defender Program were:
- the final COVID19 judicial emergency order entered by the Chief Justice of the Supreme Court of Georgia expires
- the Georgia Department of Corrections lifts its suspension of legal visitation, and normal visitation resumes
- a vaccination against COVID19 is readily available to all members of the public
According to the state Supreme Court ruling, there is now a "new standard" for visitations within the Department of Corrections "as a result of the DOC’s need to adapt to the 'new normal' in a post-pandemic society."
The state argued that when the execution was scheduled in May, "the new standard for legal and normal visitation had been resumed and that neither logic nor the agreement’s language requires that legal or normal visitation return to exactly how it was before the pandemic."
The Court wrote, however, that "we reject the contention that the resumption of 'modified' or restricted visitation on April 7, 2021, was what the parties intended regarding the second condition of the agreement" and that "there is at least some evidence in the record to support the trial court’s finding that, at the time that Presnell’s execution order was issued, the DOC’s 'modified' normal and legal visitation procedures 'continue[d] to impose significant limitations on visitation.'"
All of that could mean the Georgia Department of Corrections would have to overhaul its visitation policy to return to pre-COVID standards in order for Presnell's execution to move forward, as per the state's agreement with the Federal Defender Program.
More on the case:
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 at the same time 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.” Sexual abuse was “endemic” in his family.
The application said that even when he was arrested, his significant cognitive limitations were on display. 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 girls' families 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."