Georgia Supreme Court delays execution of convicted murder, rapist
Virgil Delano Presnell Jr. (Georgia Department of Corrections)
ATLANTA - The Georgia Supreme Court delayed the execution of a man on grounds that Georgia Department of Corrections policies interfere with attorneys' ability to represent death row inmates.
Virgil Delano Presnell Jr., 68, was sentenced to death for the murder of 8-year-old Lori Ann Smith and the rape of her 10-year-old friend after abducting them in May 1976 as they walked home from school in Cobb County.
The Federal Defender Program, which represents Presnell, alleged the state and Attorney General Chris Carr "breached a contract governing the resumption of the execution of death sentences in Georgia after the COVID-19 pandemic." The state argued a trial court should not have denied its motion to dismiss the Federal Defender Program's motion based on sovereign immunity. State attorneys also argued a court should not have granted the defense's emergency restraining order, which prevented the state from seeking execution.
An email exchange between the state attorney general's office and Federal Defender Program lawyers was at the center of the ruling. Ultimately, the Georgia Supreme Court decided the state waived its right to sovereign immunity and found the defense motions valid.
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"As explained below, we conclude that an e-mail exchange between a deputy attorney general and certain capital defense attorneys, including an attorney employed by the Federal Defender, constituted a written contract sufficient to waive sovereign immunity in this matter, and we in turn conclude that the trial court did not abuse its discretion in weighing the equities in granting the Appellees’ motion for injunctive relief."
Georgia Attorney General Chris Carr’s office did no comment on the case that's now heading to a trial court.
Tuesday’s 6-0 ruling could affect other inmate execution. The last execution in Georgia was in January 2020. From 2010 to 2019, Georgia executed three people on average each year. In October, Georgia had 38 people on death row, but fewer had exhausted their appeals, according to a state report.
"We will continue to hold the State to its agreement regarding Covid-restrictions so that the Federal Defender may properly, professionally, and safely represent its clients before the courts and the Georgia Board of Pardons and Paroles," Ronan Doherty, who represented the Federal Defender Program, said in a statement.
It's not the first time Presnell's legal team has bought him more time. A judge halted Presnell's execution in May after the State Board of Pardons and Paroles denied clemency for Presnell after "thoroughly considering all the facts and circumstances of the case."
Presnell was convicted in August 1976 on charges including malice murder, kidnapping and rape, and was sentenced to die. His death sentence was overturned in 1992, but was reinstated in March 1999.
The Associated Press contributed to this report.