Georgia accused of violating Covid-19 agreement pausing prisoner executions

ATLANTA (CN) — Attorneys for a death-sentenced inmate argued to a judge on Thursday that Georgia’s attorney general failed to follow the terms of an agreement that halted executions amid the Covid-19 pandemic.

In an agreement with the Federal Defender Program, the state promised to refrain from pursuing execution warrants for certain death-sentenced prisoners until six months after three conditions were met: the final Covid-19 judicial emergency order entered by the chief justice of the Georgia Supreme Court expires; the Georgia Department of Corrections lifts its suspension of legal visitation and normal visitation resumes; and a vaccination against Covid-19 is readily available to all members of the public.

While the judicial emergency expired in June 2021, the Federal Defender Program argued the state has resumed pursuing execution warrants while the other conditions remain unmet.

Attorney Sarah Brewerton-Palmer argued that the vaccine condition is not satisfied and a Covid-19 vaccine is not readily available to all members of the public because it is not yet approved for children younger than six months old.

“The contract’s language is unambiguous and clear,” she told Fulton County Superior Judge Shukura Ingram.

Representing the state, attorney Logan Winkles argued the vaccine is available to newborn infants through the pregnant mother. He noted that under Georgia law, the definition of a natural person includes an unborn child.

“Pregnant women are encouraged to get the vaccine,” said Winkles.

The Federal Defender Program sued the state for breaching its contract after it obtained a warrant on April 27, 2022, to execute Virgil Delano Presnell Jr. in less than a month. The nonprofit organization, which represents defendants who cannot afford counsel, said it was given only a two-day notice, making it unable to properly prepare for Presnell’s clemency proceedings and provide expert witnesses.

On the eve of his execution, a Fulton County judge granted a request for a preliminary injunction, halting the execution less than 24 hours before it was to take place.

Palmer noted that the injunction was upheld by the Georgia Supreme Court, which interpreted the contract’s vaccine condition as having no age limitation, meaning the vaccine must be available to everyone regardless of age before the state can resume executions.

Presnell 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 reinstated in March 1999.

The now-71-year-old killed 8-year-old Lori Ann Smith and raped her 10-year-old friend after abducting them in May 1976 as they walked home from school in Cobb County, just outside Atlanta. Presnell immediately confessed and brought Smith’s body to police.

In a clemency application, Presnall’s lawyer wrote that his mother’s heavy alcohol use while she was pregnant left him “profoundly brain damaged” and that he didn’t understand the harm he was causing the girls.

But Smith’s family said that was disproven during trial, where evidence showed Presnell was able to hold jobs, read academic books, and build toys for his son while in prison.

Smith’s sister, cousin, and childhood best friend attended Thursday’s hearing and expressed frustration with waiting now 49 years to see Presnell executed.

“Her mom and dad aren’t gonna live forever, and they need to see the final justice for their daughter,” said Smith’s cousin, Donna Koon, who traveled to the hearing from Kentucky.

They said that the longer the court battle draws out, the more challenges they face, as each time a new district attorney takes over Cobb County, they gain discretion over whether or not to seek the death penalty again.

While Presnell’s death sentence has been upheld by the county’s previous district attorneys, Smith’s sister Lisa Hare said they are not sure how the recently elected Sonya Allen will feel toward the controversial punishment.

“There’s never been a question of whether he was guilty or not, but here we sit,” said Cheryl Pendley, Smith’s childhood best friend.

Ingram did not say when she will rule but said she will address the vaccine condition of the contract before hearing arguments on whether the visitation condition has been met.

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