ATLANTA (AP) — Lawyers for a Georgia man scheduled to be put to death next week for killing an 8-year-old girl 46 years ago are trying to delay the execution.
Virgil Delano Presnell Jr., 68, is scheduled to die May 17 at the state prison in Jackson by injection of the sedative pentobarbital. He killed the 8-year-old 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 convicted in August 1976 on charges including malice murder, kidnapping and rape and was sentenced to death. His death sentence was overturned in 1992 but was reinstated in March 1999.
Lawyers representing the Federal Defender Program, which represents Presnell, filed the lawsuit and an emergency motion Monday in Fulton County Superior Court. They say the setting of his execution date violates a written agreement reached last April with the office of state Attorney General Chris Carr that temporarily put executions on hold during the coronavirus pandemic and established conditions under which they could resume.
The lawsuit says 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 which names Carr and the state of Georgia as defendants.
A spokeswoman for Carr declined to comment, citing pending litigation.
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 on death row 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 wouldnt be scheduled until August at the earliest.
A few days later, on April 25, the state attorney notified Presnell's lawyers 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 Presnell's attorneys just two days of notice that they intended to set his execution date, the lawsuit says.
“These actions constitute a clear breach of the Agreement and will lead to irreparable harm if not enjoined by this Court,” the lawsuit says.
If the court doesn’t delay the execution, the lawsuit says, Presnell’s lawyers won’t have the time they were promised to prepare for his clemency hearing, which is scheduled for Monday.
After getting notice of Presnell’s execution date, his lawyers learned that an expert witness they planned to use for the clemency hearing recently had emergency surgery for a cardiac illness. Other witnesses they planned to call also have conflicts.
The lawsuit asks that the state be prohibited from seeking an execution warrant for Presnell and any other people on death row who are subject to the agreement until six months after all the conditions have been met.
“Should this Court fail to intervene on an emergency basis to enjoin the State and Attorney General from prematurely carrying out executions in violation of the Agreement, the Federal Defender and its clients will suffer the most grave form of irreparable harm,” the emergency motion filed with the lawsuit says.
Presnell abducted the two girls as they walked home along a wooded trail from a Cobb County elementary school on May 3, 1976. He drove them to a secluded wooded area, had them undress and raped the older girl, according to evidence at trial outlined in a Georgia Supreme Court ruling. The younger girl tried to run, but Presnell caught her and drowned her in a creek, the ruling says.
He locked the 10-year-old girl in the trunk of his car and then left her in a wooded area when he got a flat tire, saying he’d return. She ran to a nearby gas station and described Presnell and his car with a flat tire to police.
Officers found him changing his tire at his apartment complex. He denied everything at first but later led police to the 8-year-old girls body and confessed, the ruling says.
Attorneys for Presnell have said in court filings that Presnell was born to a teenage mother who drank and smoked heavily throughout her pregnancy. Presnell suffered from fetal alcohol syndrome that damaged his brain and kept him “from ever developing into a functioning, responsible adult,” his lawyers argued.