Attorneys representing a Georgia prisoner set to be put to death next week for the 1976 murder of an 8-year-old Cobb County girl filed a lawsuit Monday seeking to delay the execution.
Virgil Delano Presnell Jr, who killed the young girl 46 years ago, is scheduled to die by lethal injection May 17 at the Georgia Diagnostic and Classification Prison in Jackson.
But in an emergency motion filed Monday, attorneys from three Atlanta law firms said the state’s decision to execute Presnell violates a written agreement with the state Attorney General’s Office. Put in place last year, it postponed most Georgia executions until after the COVID-19 pandemic.
The suit was filed on behalf of lawyers at the federal public defender’s office in Atlanta, who will represent Presnell during his clemency petition before the state Board of Pardons and Paroles.
On May 4, 1976, Presnell kidnapped two girls as they walked home from Russell Elementary School in Smyrna. Authorities said he had been scouting out the area, watching young girls near the school. He raped a 10-year-old and then killed 8-year-old Lori Ann Smith when she tried to run away, drowning her face-down in nearby Nickajack Creek.
During a retrial in 1999, key testimony was provided by the surviving victim. She told the court Presnell snuck up behind them, forced them into his blue Plymouth Duster and took them to a wooded area where he raped the older child in front of her friend.
After catching and drowning Lori Ann when she tried to run, Presnell forced the 10-year-old back into his car. She eventually managed to escape and run for help at a nearby gas station, investigators said. Presnell was arrested after police found him changing a flat tire outside an apartment he shared with his mother.
He quickly confessed to the killing and led police to Lori Ann’s body. Presnell was initially sentenced to death in 1976 but that was overturned on appeal. During a retrial in 1999, he received another death sentence that still stands today. Forty-six years after the rape and murder, the Georgia Department of Corrections announced he would be killed.
Monday’s lawsuit, filed in Fulton County Superior Court against the state and Attorney General Chris Carr, said last year’s agreement established three conditions that must be met before the resumption of executions: the expiration of the Georgia Supreme Court’s COVID-19 judicial emergency, the resumption of normal visitation at state prisons and a COVID vaccine that’s “readily available to all members of the public.”
While the first condition has been met, state prisons are not back to regular visitation schedules and the vaccine still isn’t available to children under 5, said the lawsuit, which asks the court to grant an injunction delaying Presnell’s execution.
The AG’s office also had said the first person to be executed after the three conditions were met would be Billy Raulerson, who sits on death row for killing three Ware County residents in 1993, the suit said. It added that the agreement also stipulated that Raulerson’s execution would be scheduled to occur three months after those conditions were satisfied and that the next execution would be set three months after that.
“Contrary to the agreement, the Attorney General gave the Federal Defender just two days of notice that they intended to pursue Mr. Presnell’s execution warrant instead of the promised six months after the conditions had been met,” the filing reads. “These actions constitute a clear breach of the agreement and will lead to irreparable harm if not enjoined by this court.”
The day after Presnell’s attorney learned of the state’s plans to execute him, she found out an expert clemency witness suffered a cardiac event requiring emergency surgery. Other witnesses, the filing said, have “immovable conflicts because of the late notice.”
If an injunction is not granted, the filing said, Presnell’s legal team will not receive the time it was promised to prepare for his clemency proceeding, which is set for next Monday.
The violation of last year’s agreement, the filing said, has turned “ordinary conflicts into extraordinary problems” that are hindering attorneys from properly preparing for next week’s clemency petition, which could be Presnell’s “last meaningful chance to avoid execution.”
Citing pending litigation, Carr’s office declined to comment Monday.
During his trial, Presnell’s mother and other relatives testified that his life should be spared because his mind was warped by a childhood of incest and abuse.
If he is executed next week, the 68-year-old Presnell would be the 54th Georgia prisoner killed by lethal injection, according to the Georgia Department of Corrections.