Georgia Allegedly Violated Pandemic Agreement By Scheduling Execution of Virgil Presnell

Attorneys for Georgia death-row pris­on­er Virgil Presnell, Jr. (pic­tured left, with his moth­er) have filed a law­suit argu­ing that Attorney General Chris Carr vio­lat­ed a writ­ten agree­ment when his office set a May 17, 2022 exe­cu­tion date for their client.

Executions in Georgia have been on hold since the onset of the COVID-19 pan­dem­ic. In April 2021, Carr agreed not to set any exe­cu­tion dates until three con­di­tions had been met: the expi­ra­tion of the Georgia Supreme Court’s COVID-19 judi­cial emer­gency, the resump­tion of nor­mal vis­i­ta­tion at state pris­ons, and a COVID vac­cine that’s ​“read­i­ly avail­able to all mem­bers of the pub­lic.” In a law­suit filed May 9 in Fulton County Superior Court, Presnell’s attor­neys say that Carr vio­lat­ed that agree­ment in sched­ul­ing Presnell’s exe­cu­tion. Georgia pris­ons still have a mod­i­fied vis­i­ta­tion pol­i­cy, and COVID vac­cines are not avail­able to chil­dren under 5.

The agree­ment also said that, once the cri­te­ria were met, the state first intend­ed to seek an exe­cu­tion date for a dif­fer­ent pris­on­er, Billy Raulerson. Raulerson’s exe­cu­tion was to be sched­uled at least three months after the con­di­tions were met, and the state said the next exe­cu­tion would be sched­uled three months after that. Instead, Presnell’s exe­cu­tion was the first one sched­uled, and his attor­neys were giv­en far less than the agreed-upon notice peri­od. ​“Contrary to the agree­ment, the Attorney General gave the Federal Defender just two days of notice that they intend­ed to pur­sue Mr. Presnell’s exe­cu­tion war­rant instead of the promised six months after the con­di­tions had been met,” the law­suit says. ​“These actions con­sti­tute a clear breach of the Agreement and will lead to irrepara­ble harm if not enjoined by this Court.”

Presnell’s lawyers argue that they were not giv­en ade­quate time to pre­pare for his clemen­cy hear­ing, which is sched­uled for May 16. One expert wit­ness they had planned to have tes­ti­fy at the hear­ing recent­ly had emer­gency heart surgery and is unavail­able. Other wit­ness­es have ​“immov­able con­flicts because of the late notice.”

Presnell was first sen­tenced to death in 1976 for the mur­der of one girl and the rape and kid­nap­ping of anoth­er. On appeal, statu­to­ry and con­sti­tu­tion­al defi­cien­cies in the case led to a series of rever­sals. The Georgia Supreme Court vacat­ed the death sen­tences for kid­nap­ping and rape but affirmed the mur­der and rape sen­tences, and the U.S. Supreme Court vacat­ed the death sen­tence for mur­der, remand­ing for fur­ther pro­ceed­ings. On remand, the Georgia Supreme Court rein­stat­ed the death sen­tence for mur­der. In 1990, a fed­er­al dis­trict court vacat­ed Presnell’s death sen­tence because of pros­e­cu­to­r­i­al mis­con­duct. The court found that the prosecutor’s clos­ing argu­ment was ​“so egre­gious that it ren­dered the pro­ceed­ing fundamentally unfair.”

Presnell was resen­tenced to death in 1999. Following his resen­tenc­ing, Presnell’s attor­neys in fed­er­al habeas pro­ceed­ings chal­lenged his tri­al counsel’s fail­ure to inves­ti­gate and present evi­dence that Presnell’s moth­er drank bour­bon to excess through­out her preg­nan­cy and that, as a result, Presnell suf­fered from fetal alco­hol spec­trum dis­or­der. In 2020, the Eleventh Circuit ruled that Presnell’s court-appoint­ed tri­al coun­sel had not been inef­fec­tive. The court held that counsel’s fail­ure to fur­ther explore the issue was not unrea­son­able once Presnell’s moth­er told his tri­al inves­ti­ga­tor that she ​“did not drink except social­ly” dur­ing the pregnancy.

In court fil­ings, Presnell’s coun­sel note that fetal alco­hol spec­trum dis­or­der caused brain dam­age that pre­vents him ​“from ever devel­op­ing into a func­tion­ing, respon­si­ble adult.” Presnell was also a vic­tim of incest and severe phys­i­cal abuse. The vast major­i­ty of pris­on­ers exe­cut­ed in recent years have had seri­ous men­tal ill­ness, brain dam­age or intel­lec­tu­al dis­abil­i­ty, and/​or chron­ic childhood trauma.