ATLANTA — A judge on Monday temporarily delayed the execution of a Georgia man who was scheduled to die Tuesday for killing 8-year-old girl 46 years ago.
Virgil Delano Presnell Jr., 68, killed the girl and raped her 10-year-old friend after abducting them as they walked home from school in Cobb County, just outside Atlanta, on May 4, 1976. He was scheduled to die by injection of the sedative pentobarbital at the state prison in Jackson at 7 p.m. Tuesday.
Ruling from the bench at the end of a hearing that lasted more than eight hours Monday, Fulton County Superior Court Judge Shermela Williams issued an order temporarily prohibiting the state from proceeding with the execution Tuesday. She was ruling in a lawsuit filed on behalf of Presnell’s lawyer that alleged that by setting an execution date that said the state violated an agreement that effectively put executions on hold during the coronavirus pandemic and established conditions under which they could resume.
Earlier Monday, the State Board Board of Pardons and Paroles, the only authority in Georgia that can commute a death sentence had declined to halt Presnell’s execution. That means the judge’s order was likely his last chance to avoid execution Tuesday.
The lawsuit alleges the agreement said that, with one named exception, executions wouldn’t resume until six months after three conditions had been met: the expiration of the state’s COVID-19 judicial emergency, the resumption of normal visitation at state prisons and the availability of a COVID vaccine “to all members of the public.”
The judicial emergency ended in June, but prisons are still using a modified visitation policy and children under 5 still can’t access the vaccine, according to the lawsuit.
The agreement said that once the conditions were met, the state intended to seek an execution date for Billy Raulerson, who was sentenced to death for the May 1993 killings of three people in south Georgia, and that Raulerson’s lawyers would be given at least three months notice after the conditions were met, the lawsuit says. The attorney general’s office said it wouldn’t seek the execution of anyone else covered by the agreement until at least six months after the conditions were met, the suit says.
In late April, the attorney general’s office informed Raulerson’s attorney that the state intended to schedule Raulerson’s execution for May 17, the lawsuit says. After Raulerson’s attorney reminded a state attorney that she had agreed not to schedule the execution during his previously scheduled vacation, the state attorney told him Raulerson’s execution wouldn't be scheduled until August at the earliest.
A few days later, on April 25, the state attorney notified Presnell’s attorney, Monet Brewerton-Palmer, that the state intended to seek an execution warrant for him, the lawsuit says. The warrant was issued April 27.
Contrary to the agreement, the attorney general gave Brewerton-Palmer just two days of notice that they intended to set his execution date, the lawsuit says. That left her with insufficient time to prepare for his clemency hearing Monday, the lawsuit says.
After getting notice of Presnell’s execution date, Brewerton-Palmer learned that an expert witness she planned to use for the clemency hearing recently had emergency surgery for a cardiac illness. Other witnesses she planned to call also had conflicts.
In a clemency application submitted to the parole board, Brewerton-Palmer had argued that he is “profoundly brain damaged” and didn’t understand the harm he was causing the two girls. He is deeply sorry for the pain he caused and wishes he could “take it all back,” she wrote.