Execution for Georgia man Virgil Delano Presnell Jr. who killed a girl stayed temporary

ATLANTA — A judge on Monday temporarily delayed the execution of a Georgia man who was due 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 her on May 4, 1976, on her way home from school in Cobb County, just outside Atlanta. He was scheduled to die by injection of the sedative pentobarbital at Jackson State Penitentiary at 7 p.m. Tuesday.

At the conclusion of a hearing that lasted more than eight hours Monday, Fulton County Superior Court Judge Shermela Williams issued an order temporarily barring the state from proceeding with Tuesday’s execution. She ruled in a lawsuit filed on behalf of Presnell’s attorneys, alleging that by setting a date for the execution, the state violated an agreement that effectively put executions on hold during the coronavirus pandemic and set conditions under which they could resume could become.

Prosecutors said they would appeal the judge’s verdict so that the execution could go ahead as planned.

Earlier Monday, the State Board of Pardons and Paroles, the only agency in Georgia that can commute a death sentence, declined to stop Presnell’s execution.

The lawsuit, filed on behalf of the Federal Defender Program, which Presnell is representing, alleges that the agreement provided that executions, with one noted exception, would not resume until six months after three conditions were met: the expiry of the state COVID-19 emergency court, the resumption of normal visiting in state prisons and the availability of a COVID vaccine “to all members of the public”.

The justice emergency ended in June, but jails are still applying a modified visitation policy and children under 5 still don’t have access to the vaccine, argued Mike Caplan, an attorney representing the Federal Defender Program, in court.

Jonathan Loegel, a state attorney, argued that the agreement was not a binding contract and also said that the state “substantially honored” its terms. He said visits have “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 had been sentenced to death for the killing of three people in South Georgia in May 1993, and would give Raulerson’s lawyers at least three months would terminate after the conditions were met, the lawsuit states. The attorney general’s office said it would not seek the execution of people covered under the agreement until at least six months after the conditions were met, the lawsuit says.

In late April, the attorney general’s office notified Raulerson’s attorney that the state intended to schedule Raulerson’s execution for May 17, the lawsuit states. After Raulerson’s attorney reminded a prosecutor that she had agreed not to schedule the execution during his previously scheduled leave, the prosecutor informed him that Raulerson’s execution would not take place until August at the earliest.

A few days later, on April 25, the prosecutor told Presnell’s attorney, Monet Brewerton-Palmer, that the state intended to seek a death warrant against him, the lawsuit states. The arrest warrant was issued on April 27.

Contrary to the agreement, Attorney General Brewerton-Palmer only gave two days notice that they intended to set his execution date, the lawsuit says. That didn’t leave her enough time to prepare for Monday’s clemency hearing, the lawsuit says.

The clemency hearing lasted just an hour Monday morning, and Brewerton-Palmer did not call witnesses or experts to testify or produce the dozens of witnesses she would otherwise have provided, Caplan said.

“That’s often a death row inmate’s best hope, not being executed,” Caplan said. “Your mercy this morning was completely wiped out.”

In a parole petition filed with the parole board, Brewerton-Palmer argued that he was “deeply brain damaged” and didn’t understand the harm he was doing to the two girls. But due to COVID restrictions on visits and travel, and an expert who recently suffered from a heart problem, she was unable to substantiate this.

Brewerton-Palmer worked on Presnell’s case, but because of the agreement, “it wasn’t on their radar as an emergency,” Caplan argued. He asked the judge to delay the execution to give Brewerton-Palmer time to complete her investigation and adequately prepare for a new clemency hearing.

It is in the public interest to ensure promises made by the state are kept and to avoid any impression that Presnell would be executed early unless his attorney was prepared to present a clemency case, Caplan said.

Loegel argued that the state had an interest in ensuring the speedy and timely administration of justice and delaying the execution would prevent this. Brewerton-Palmer has known since last fall that Presnell has exhausted his appeals and therefore has ample time to prepare, he argued.

Williams said she understands the emailed agreement should be binding on the parties. The Federal Defender Program has been prevented from preparing as it should have been and relying on the agreement by COVID-related reasons, she said.

It is clear that Presnell, who allowed her to intervene in the lawsuit, would suffer irreparable harm if the execution were not delayed, telling the judge: “We cannot come back from death.” Execution for Georgia man Virgil Delano Presnell Jr. who killed a girl stayed temporary


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