AG Carr can’t redo deal delaying executions, even if he’s ‘unhappy,’ judge rules

The attorney general argued that the pandemic is over and that the agreement the state reached with the prisoners has served its purpose, but Ingram found that the state’s choice of words in a 2021 email to the attorneys are binding, even if the attorney general regrets it now, she said in the decision.

Just because the state is “unhappy with the language it drafted” does not mean it gets to rewrite it, Ingram said.

“Courts cannot rewrite contracts to relieve a party of their regrets,” she wrote, issuing a permanent injunction requiring the state to comply with its agreement going forward.

After two months of negotiations in 2021, the Georgia Attorney General’s Office reached the deal with attorneys for nine death row inmates who had exhausted their appeals and were in line for executions at the time.

The arrangement was memorialized in an April 2021 email from Deputy Attorney General Beth Burton, who oversees the office’s death-penalty litigation. She wrote, “this email serves as the agreement.”

In the email, the AG’s office said it would delay pursuing the prisoners’ executions until three conditions were met: the statewide judicial emergency in place at the time had to be lifted, normal visitation would resume at state prisons and the COVID vaccine would be “readily available to all members of the public.”

In a ruling last week, Ingram said a vaccine still hasn’t been approved for children younger than 6 months old. Until one is, she said the vaccine isn’t readily available to everyone.

A spokesperson for Carr, who is running for governor in the upcoming 2026 election, said the attorney general plans to appeal the decision.

Credit: arvin.temkar@ajc.com

Credit: arvin.temkar@ajc.com

The issue came about in May 2022 when the state attempted to execute Virgil Presnell, Georgia’s longest-serving death row inmate. Presnell’s execution was halted by another Fulton judge just hours before he was set to die by lethal injection.

The judge ruled the state violated its agreement by pursing Presnell’s death warrant with just two days’ notice before all three of the conditions were met. Carr’s office appealed the May 2022 decision to the Georgia Supreme Court, which slammed the state for backtracking on its agreement.

The goal of the agreement was to offer some relief to the state’s capital defenders, who feared they wouldn’t have enough time to defend their clients given the pandemic-era restrictions in place. Presnell’s defense team was given just two days’ notice to prepare for his clemency hearing even though the state had said it would give at least six months’ notice.

“Mr. Presnell had to prepare for his execution when the agreement’s protections should have still been in place,” attorney Sarah Brewerton-Palmer argued at a February hearing.

She said until a vaccine is available to children younger than 6 months, the terms of that agreement still haven’t been reached. Attorneys for the state argued the vaccine is widely available now and that executions should be allowed to resume.

Logan Winkles, an attorney for the AG’s office, argued that newborns can be born with COVID antibodies if their mothers choose to get vaccinated.

“There are medical benefits and antibodies that travel through a vaccinated mother and into an unborn child,” Winkles said at the hearing. “They are, in fact, available to an infant through a mother.”

Experts said a COVID vaccine will most likely become available for children under 6 months old eventually. Ingram said when the state attempted to execute Presnell three years ago, the vaccine wasn’t even available to children under 5.

With just two days’ notice, Presnell’s defense counsel couldn’t properly prepare for his clemency hearing, call any live witnesses or rely on their experts, the judge said.

Credit: Shaddi Abusaid / shaddi.abusaid@ajc.com

Credit: Shaddi Abusaid / shaddi.abusaid@ajc.com

“Presnell was forced to face his potential execution when he was supposed to be protected by the agreement,” Ingram said, issuing a permanent injunction prohibiting the state from seeking additional execution warrants in violation of the agreement.

“Without a permanent injunction, plaintiffs will be deprived of the bargained-for time and notice needed to adequately prepare for clemency proceedings,” she wrote.

The agreement does not halt all executions of death row inmates. The last inmate executed by the state was Willie James Pye on March 20, 2024.

Meanwhile, three death row inmates not included in the agreement are asking the Eleventh Circuit Court of Appeals to rule on whether or not is fair that there are two groups of death-eligible death row inmates in Georgia: those covered by the agreement and those who are not. Oral arguments have been scheduled for October.

Presnell is on death row for the 1976 murder of an 8-year-old in Cobb County. He kidnapped two girls as they walked home from Russell Elementary School in Smyrna, raped a 10-year-old and then killed 8-year-old Lori Ann Smith when she tried to run away, drowning her in a nearby creek.

Presnell’s attorneys contend he is intellectually disabled and should not be executed.

A bill aimed at ensuring intellectually disabled people aren’t executed in Georgia was signed into law last month, but it only applies to future cases and therefore wouldn’t cover Presnell.

House Bill 123, which passed both legislative chambers with bipartisan support, lowers the legal threshold required to show someone has an intellectual disability in capital punishment cases.

Previously, defendants facing the death penalty had to prove their disability beyond a reasonable doubt. It was a standard that defense attorneys had argued for years was nearly impossible to meet.