Although the Georgia Supreme Court on Wednesday dismissed one of condemned killer Virgil Presnell’s final appeals, his execution is not expected to be carried out for several months.
A Fulton County judge’s injunction that temporarily bars Presnell’s execution remains in place and the state’s appeal of that ruling is now pending before Georgia’s high court. In an order issued last week, the Supreme Court set a schedule for both sides to file legal briefs in the case. It also said if one of the parties requests an oral argument, it will be set for September.
This means Fulton Superior Court Judge Shermela Williams’ injunction could remain in place until the high court issues its decision, either late this year or early next.
Last month, Williams halted Presnell’s execution less than 24 hours before he was to be put to death by lethal injection for the 1976 murder of an 8-year-old Cobb County girl.
At issue are claims by Presnell’s lawyers that the state Attorney General’s Office reneged on an agreement halting most executions until three conditions were met: 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 is “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 a lawsuit filed by Presnell’s lawyers from the federal public defender’s office in Atlanta.
In her order, Williams said her injunction remains in effect until a final judgment is issued in the case or until six months after the other two conditions are met.
Attorneys for the 68-year-old also argue Presnell’s life should be spared because he is a “cognitively disabled man” whose execution is prohibited by the Eighth Amendment.
Presnell’s lawyer, Monet Brewerton-Palmer, said in a habeas petition that her client is profoundly brain damaged as the result of his mother’s heavy alcohol consumption during pregnancy.
“Though he is now 68 years old, he remains childlike and gullible,” she said, noting his functioning is that of an average 9-year-old. “He has enormous difficulty acquiring and processing new information, navigating social interactions and reasoning abstractly.”
The petition was filed last month in Butts County, where Presnell remains on death row at the Georgia Diagnostic and Classification State Prison. The AG’s office argued a Butts County judge was correct to dismiss the petition because Presnell’s attorneys raised similar claims about his fetal alcohol spectrum disorder in previous proceedings.
In a brief order issued Wednesday, the Georgia Supreme Court declined to hear the appeal and dismissed a related motion to stay Presnell’s execution because his execution warrant expired last week.
Justices have yet to rule on Williams’ injunction, which protects Presnell and other death-sentenced prisoners represented by the federal defender’s office or the Georgia Resource Center, a nonprofit that represents people on death row.
Presnell kidnapped two Cobb County girls as they walked home from Russell Elementary School in May 1976, raping a 10-year-old and then drowning 8-year-old Lori Ann Smith 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 a joint statement sent to The Associated Press, the victims’ families voiced frustration over the decades-long delay in executing Presnell, saying they have waited long enough.
“These families have suffered this trauma repeatedly and waited patiently for 46 years for closure,” the statement said.
Lisa Smith, Lori’s older sister, told the state parole board last month that “it has been slow and painful waiting for his day to finally come.”
“Presnell needs to be put to death,” she told the five-member board, according to a copy of her statement shared with the AP. “We have all waited long enough.”
