OPINION: 44 years on Georgia’s death row — and counting

Death penalty opponents stand at the State Capitol on Tuesday, May 16, 2017, in Atlanta to protest the planned execution of J.W. Ledford for the 1992 murder of his elderly neighbor. Curtis Compton/ccompton@ajc.com

Death penalty opponents stand at the State Capitol on Tuesday, May 16, 2017, in Atlanta to protest the planned execution of J.W. Ledford for the 1992 murder of his elderly neighbor. Curtis Compton/ccompton@ajc.com

Convicted child killer Virgil Delano Presnell Jr. has been in a Georgia death row cell for a long, long time.

How long?

When he was first sent there, I was just starting college. This year I qualified for Social Security retirement benefits, having turned 62.

Put another way, when Joe Biden is inaugurated next month, he’ll be the ninth president of Presnell’s tenure. Gerald Ford was the first.

I’m noting this to point out the bizarre, frustrating and even arbitrary manner in which the death penalty is administered.

Don’t get me wrong, I’m not trying to elicit sympathy for Presnell, who turns 67 next week. On May 4, 1976, he kidnapped two young girls as they walked home from school through a field. He had been scouting out the area, watching young girls at the school with binoculars. He raped the 10-year-old and then killed 8-year-old Lori Ann Smith when she tried to run away. He drowned her in a shallow creek.

When I called the former prosecutor, he immediately recalled that the autopsy found sand in her lungs.

It was a monstrous crime and Presnell immediately fessed up and brought police to Lori Ann’s body. The idea of a death penalty is deeply divisive and controversial, but if you’re going to have it, then someone like Presnell should be first in line.

Virgil Delano Presnell Jr. has been in a death row since 1976 for the murder of an 8-year-old girl

Credit: Georgia Department of Corrections

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Credit: Georgia Department of Corrections

Someone like a 1981 Presnell, that is. Or a 1991 Presnell. But is it justice to kill a 67-year-old for what he did as a 22-year-old? That’s a debate that has raged for decades.

In September, the 11th U.S. Circuit Court of Appeals flatly rejected Presnell’s request for a new trial. This month, that court “issued the mandate,” meaning it made its final opinion in the case, declining a request by Presnell’s lawyers to rehear the appeal. So the case is headed, once again, to the U.S. Supreme Court.

Buddy Darden, the Cobb County district attorney who tried the case in 1976 and later went on to six terms in Congress, remembers the crime clearly. It was committed on Georgia’s presidential primary day, he recalled, with a win by former Gov. Jimmy Carter. (I checked and he was right.)

He was amazed to hear that Presnell’s case was still churning along, thinking his sentence had been commuted.

“If there was ever a case that cried out for the death penalty, this was it,” said Darden. But he added that he has backed off on his support for the death penalty “because it’s been administered so inconsistently.”

Bob Tressell was a 23-year-old Cobb investigator who interviewed the surviving victim. The girl was placed in Presnell’s trunk and later released. She provided a spot-on description of his two-door Plymouth Duster, which helped facilitate his quick capture.

Tressell still believes Presnell is deserving of execution, even though he currently works part time as an investigator for defense attorneys appealing death penalty cases.

“I’m not saying I’m trying to get (clients) off. I’m trying to make sure they got a fair trial,” he said.

Georgia's death chamber. (credit: Ben Gray / bgray@ajc.com)

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Tressell, who later worked for the medical examiner’s office, said he has “mixed emotions on the death penalty. It’s not administered in a way that it’s a deterrent.”

Also, he said, the discretion of prosecutors whether or not to seek the death penalty builds an inherent unfairness. On one case he worked, a teen-aged client was sentenced to death. If it happened 100 yards away in an adjoining jurisdiction, the defendant would have gotten prison.

The death penalty itself is dying out in Georgia. Since March 2014, just one defendant has been sentenced to death: Tiffany Moss in Gwinnett County. Moss was convicted of starving a child to death. She represented herself and made no attempt at a defense.

Why is the ultimate penalty so scarce?

“Our jury pools are made up differently,” Tressell said. “We are getting a broader spectrum of the public, we’re getting younger jurors. They are not the old-school way of thinking. We used to get the death penalty right and left.”

Death penalty cases routinely take decades to work themselves through the seemingly endless appeals, which is not a bad thing because with death, you can’t take it back. Presnell’s sentence was vacated by a federal judge in the 1980s, then reinstalled by the appeals court, and then vacated. Ultimately, he was afforded a new sentencing trial in 1999 in Cobb, where a jury again meted out the death penalty.

Former DeKalb County district attorney J. Tom Morgan, who is now a law school professor, said the relatively new sentence of life without parole has largely snuffed out the death penalty.

“Death penalties are very rare these days,” Morgan said. “Most juries are more comfortable with life without parole because they’ll die in prison and the jurors don’t have a death penalty hanging over their heads.”

Cases of innocent people being released from death row in recent years have understandably given many jurors pause.

Steve Schuster, a retiring Cobb County Superior Court judge, represented Presnell during his 1999 resentencing trial. “The fact situation in that case was probably the most horrific I’ve come across,” he said.

Cobb County Superior Court Judge Steve Schuster. (VINO WONG / 2011 AJC file photo)

Credit: Vino Wong

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Credit: Vino Wong

In the retrial, prosecutors had an even stronger case than in 1976. Most of the witnesses were still alive, and the prosecution came up with other cases where Presnell had molested young girls. “They never threw out the evidence,” said Schuster. “They even had the lunchbox (from one of the girls) with the petrified sandwich from 23 years earlier.”

He said Presnell was a soft-spoken man who liked to knit and had become a historian of sorts, the holder of gruesome stories told by his fellow death row cellmates. “In a custodial setting, he was not the monster he was outside,” Schuster said.

As Presnell’s former defense attorney, Schuster said that he would not want to see his former client executed. But for those who support a death penalty, “Virgil would be a poster child for it,” Schuster admits.

Still, he said, “Forty-four years later, does that say anything to society about sending a message?”

I tried to reach Joyce Smith Hill, the mother of the murdered girl who would now be 52. I could not locate her.

But in 1999 after Presnell was again sentenced to death, she told a reporter, “I am glad. I hope it doesn’t take 22 years to put him to death.”

On March 16, it will have been another 22 years.