Lawyers: State violated agreement halting executions during pandemic

Virgil Delano Presnell, Jr.

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Virgil Delano Presnell, Jr.

Virgil Presnell’s execution postponed pending appeal

As the pandemic raged last year, Georgia’s legal community formed a task force on how to handle pending court proceedings and what to do about death row prisoners facing execution.

After two months of negotiations, an agreement was reached between the Georgia Attorney General’s Office and attorneys representing those on death row. It 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.”

The AG’s office has since backed off the accord, setting off a chain of events that led a Fulton County judge to halt an execution that had been scheduled for Tuesday evening. Lawyers defending those on death row feel betrayed.

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In the agreement, the state agreed to halt most executions until after the pandemic and it gave three conditions that must be met before they would resume: the statewide judicial emergency in place at the time had to be lifted, normal visitation would resume at state prisons and the vaccine would be “readily available to all members of the public.”

It also said the first person killed when executions resumed would be Billy Raulerson, who sits on death row for killing three Ware County residents in 1993. The state said it would not seek new execution warrants for any other inmate “before a total of six months after the time the above-three conditions are met.”

The agreement offered some relief to the state’s capital defenders, who were concerned they wouldn’t have enough time to defend their clients given the COVID restrictions in place.

Burton’s email was sent to Anna Arceneaux, executive director of the Georgia Resource Center, a nonprofit legal organization that defends people sentenced to death.

“It was a huge relief to us that we knew there was a plan we could rely on,” Arceneaux said. “The agreement clearly specified that Raulerson would be first.”

Attorneys were caught off guard last month when the AG’s office notified Virgil Presnell Jr.’s counsel that he would the first person executed in the state since the pandemic. His attorney found out on April 25, just two days before his death warrant was signed by a Cobb County judge. The next day, she learned an expert witness hired to speak on Presnell’s behalf during his clemency hearing suffered a cardiac event that required emergency surgery, according to court records.

Now, as the state pushes to execute its longest-serving death row prisoner, attorneys representing Presnell say the AG’s office reneged on its commitment. As a result, they argued in a lawsuit, Presnell’s lawyer didn’t have adequate time to prepare for her client’s clemency hearing earlier this week. Clemency was denied Monday by Georgia’s five-member parole board.

A Fulton County judge sided with Presnell’s defense attorneys later that evening, denying the state’s motion to dismiss the lawsuit. The judge issued an injunction temporarily halting the 68-year-old’s execution less than 24 hours before he was set to die.

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The AG’s office has appealed the ruling to the Georgia Supreme Court, contending among other things that last year’s email from Burton isn’t binding because it wasn’t a written contract signed by Attorney General Chris Carr.

Meanwhile, Presnell’s scheduled execution has been delayed until at least Monday, Department of Corrections spokeswoman Joan Heath told reporters.

“This ‘contract’ is a very short email that is not even addressed to a plaintiff in this case,” Deputy Attorney General Julie Adams Jacobs said during Monday’s emergency hearing in a Fulton County courtroom. “Under their argument, every single email that every single state employee sends out would be a contract.”

Ruling from the bench, Fulton County Superior Court Judge Shermela Williams sided with the defense attorneys and pushed back against the state’s suggestion that the agreement was reached without Carr’s blessing.

“That flies in the face of common sense,” Williams said.

The judge also determined it was best to stay the execution given what’s at stake.

“Say everybody here is wrong about whether or not there was a contract,” she told the attorneys. “Mr. Presnell can’t come back from death.”

Her temporary restraining order halts the execution for 30 days. Now, both sides are waiting for the state Supreme Court to rule as the life of a convicted child killer hangs in the balance.

In a filing to Georgia’s high court on Wednesday, Presnell’s attorney Monet Brewerton-Palmer said it is unconstitutional to execute Presnell because he has an intellectual disability. Her client, she wrote, 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.”

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Executing Presnell, she said, would violate a 2002 ruling in which the U.S. Supreme Court found executing someone who is intellectually disabled violates the Eighth Amendment’s prohibition of cruel and unusual punishment.

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.