A judge on Monday temporarily postponed the execution of a Georgia man who was expected to die Tuesday for murdering an 8-year-old girl 46 years ago.
Virgil Delano Presnell Jr., 68, murdered the girl and raped her 10-year-old boyfriend after kidnapping them as they walked home from school in Cobb County, just outside of Atlanta, on May 4, 1976. He was said to die from an injection of the sedative pentobarbital at the Jackson State Penitentiary at 7 p.m. Tuesday.
The bench’s ruling at the end of a hearing that lasted more than eight hours Monday, Fulton County Superior Court Judge Shermela Williams issued an injunction temporarily banning the state from continuing with the execution Tuesday.
She ruled in a lawsuit filed on behalf of Presnell’s lawyers alleging that by setting an execution date, the state violated an agreement that effectively postponed executions during the coronavirus pandemic and set conditions under which they could be resumed.
State lawyers have said they will appeal the judge’s ruling so that the execution can go as planned.
Earlier Monday, the State Board of Pardons and Paroles, the only authority in Georgia that can commute a death sentence, had refused to stop Presnell’s execution.
The lawsuit filed on behalf of the Federal Defender Program, which represents Presnell, alleges that the agreement stated that, with one noted exception, executions would not resume until six months after three conditions were met: COVID-19 judicial emergency, the resumption of normal visits to state prisons and the availability of a Covid vaccine “to all members of the public”.
The judicial emergency ended in June, but prisons still have modified visitation policies and children under 5 still don’t have access to the vaccine, Mike Caplan, an attorney representing the Federal Defender Program, argued in court.
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Jonathan Loegel, a state attorney, argued that the agreement was not a binding contract and also said the state “broadly complied” with its terms. He said the visit has resumed “into our new normal” and the vaccine has been widely available for a year.
The agreement stated that once the conditions were met, the state planned to seek an execution date for Billy Raulerson, who had been sentenced to death for the murders of three people in South Georgia in May 1993, and that the Raulerson’s lawyers would be given at least three months. after the conditions were met, the lawsuit says. The attorney general’s office said it would not seek the execution of anyone else covered by the agreement until at least six months after the terms were met, the lawsuit said.
In late April, the attorney general’s office informed Raulerson’s attorney that the state planned to schedule Raulerson’s execution for May 17, the lawsuit said. After Raulerson’s attorney reminded a prosecutor that she had agreed not to schedule the execution during his previously scheduled vacation, the prosecutor told him that Raulerson’s execution would not take place in August at the earliest.
A few days later, on April 25, the prosecutor informed Presnell’s attorney, Monet Brewerton-Palmer, that the state planned to request an execution warrant for him, the lawsuit said. The order was issued on April 27.
Contrary to the agreement, the Attorney General gave Brewerton-Palmer just two days in advance that they intended to set his execution date, the lawsuit said. As a result, she did not have enough time to prepare for his leniency hearing on Monday, the lawsuit says.
The leniency hearing lasted just an hour Monday morning, and Brewerton-Palmer called no witnesses or experts to testify or nominate the dozens of witnesses she would otherwise have provided, Caplan said.
“This is often the best hope a death row inmate has of not being executed,” Caplan said. “Her leniency case this morning was completely gutted.”
In a pardon request filed with the probation commission, Brewerton-Palmer had argued that he had “serious brain damage” and did not understand the damage he was doing to the two girls. But due to Covid visitation and travel restrictions and an expert witness who recently had a heart problem, she was unable to testify to support that.
Brewerton-Palmer had worked on Presnell’s case, but because of the deal, “it wasn’t on her radar as an emergency,” Caplan argued. He urged the judge to postpone the execution to give Brewerton-Palmer time to complete her investigation and prepare for another leniency hearing.
It is in the public’s best interest to ensure that promises made by the state are kept and to avoid the impression that Presnell would be executed prematurely if his attorney was not prepared to present a leniency suit, Caplan said.
Loegel argued that the state has an interest in a swift and timely administration of justice and that a postponement of the execution would prevent this. Brewerton-Palmer has known since last fall that Presnell had exhausted his professions and therefore had plenty of time to prepare, he argued.
Williams said it was clear to her that the email agreement was intended to be binding on the parties. The Federal Defender program was prevented by Covid-related causes from preparing as it would have and relied on the agreement, she said.
It is clear that Presnell, who gave her permission to intervene in the lawsuit, would suffer irreparable harm if the execution was not postponed, the judge said: “We cannot come back from the dead.”