Fulton judge grants injunction delaying killer’s execution

Virgil Delano Presnell Jr. has been in prison since Oct. 19, 1976.

Credit: Georgia Department of Corrections

Combined ShapeCaption
Virgil Delano Presnell Jr. has been in prison since Oct. 19, 1976.

Credit: Georgia Department of Corrections

Attorney General’s office appealing decision

A Fulton County judge late Monday granted an injunction halting the execution of a convicted child killer less than 24 hours before he was set to die by lethal injection.

Superior Court Judge Shermela Williams sided with attorneys for the Federal Defender Program, who argued the state’s decision to execute Virgil Delano Presnell Jr. violated an agreement with the attorney general’s office postponing most executions until after the COVID-19 pandemic.

“This is not a parking ticket case,” the judge said after granting an injunction from the bench that temporarily halted the execution. “This is a death penalty case.”

On Tuesday, the Georgia Attorney General’s Office notified attorneys it is appealing the judge’s ruling to the Georgia Supreme Court.

Williams’ decision came at the end of a nine-hour emergency hearing and hours after the State Board of Pardons and Paroles announced Presnell’s clemency petition was denied.

Combined ShapeCaption
Monet Brewerton-Palmer, Virgil Presnell's attorney, addresses the five-member State Board of Pardons and Paroles on Monday morning during her client's clemency hearing.

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

Monet Brewerton-Palmer, Virgil Presnell's attorney, addresses the five-member State Board of Pardons and Paroles on Monday morning during her client's clemency hearing.

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

Combined ShapeCaption
Monet Brewerton-Palmer, Virgil Presnell's attorney, addresses the five-member State Board of Pardons and Paroles on Monday morning during her client's clemency hearing.

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

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

Attorney General Chris Carr, who was named in last week’s lawsuit along with the state of Georgia, did not attend Monday’s emergency hearing.

Julie Jacobs, his deputy attorney general for commercial transactions and litigation, said she would quickly appeal the decision so Presnell’s execution could proceed as planned. A notice of appeal was filed Tuesday.

Presnell, 68, kidnapped two Cobb County girls as they walked home from Russell Elementary School in May 1976, raping a 10-year-old and then drowning her 8-year-old friend in a nearby creek when she tried to run. He was sentenced to death later that year, and again in 1999 after his first sentence was overturned.

In the clemency petition submitted to the parole board, Presnell’s attorney Monet Brewerton-Palmer asked that her client’s scheduled execution be delayed and later commuted to life in prison without parole.

ExploreCondemned child killer should be spared from execution, attorney says

The 51-page filing suggested Presnell has severe brain damage stemming from his mother’s heavy drinking while she was pregnant. Sexual abuse was “endemic” in Presnell’s family, his lawyer said, and he was raised in an abusive and unstable environment.

It also detailed his nearly five decades on death row, during which he was routinely raped and beaten at two state prisons.

“People can and will debate whether Mr. Presnell has served enough time, but nobody can dispute that he has served hard time,” Brewerton-Palmer wrote. “His crime was the worst of the worst — and so has his sentence been.”

The parole board held a daylong closed-door meeting at its downtown office, during which it heard from Presnell’s son and sister. The board announced shortly before 5:30 p.m. that the clemency petition had been denied, making the Fulton hearing his defense team’s last chance to spare his life.

Attorney Mike Caplan, who represents the Federal Defender Program, said Carr’s decision to resume executions blindsided Presnell’s lawyer and limited the amount of time she had to defend her client.

“Her clemency hearing was completely gutted,” Caplan said in Williams’ courtroom. “That work was so incomplete that Ms. Brewerton-Palmer could not present a single live witness.”

Her star witness, who planned to discuss Presnell’s diminished mental capacity, recently suffered a heart attack and couldn’t make it to the board meeting. In addition, none of Presnell’s relatives were there in person to ask that his life be spared, Caplan said. They spoke to the parole board by phone instead.

“Somebody will die if the state’s contract is not enforced,” Caplan told Williams. “Their job was to present an effective, adequate case for this prisoner and they were denied the opportunity to do that.”

The Fulton lawsuit contends last year’s agreement between death penalty attorneys and the AG’s office 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, the lawsuit said.

Jonathan Loegel, an attorney for the the AG’s office pushed back on that argument. He said vaccines have been widely available for more than a year and that visitation has resumed at state prisons, albeit under modified conditions in what he called our “new normal.”

In the emailed agreement reached last year, the AG’s 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.

But because Raulerson’s attorney planned to be on vacation in Europe, the AG’s office decided to execute Presnell instead, Caplan told the judge. Presnell’s attorney was first notified of the state’s plans on April 25, limiting the amount of time she had to prepare.

“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.”

— Please return to The Atlanta Journal-Constitution for updates.