Lawyers: Georgia man's death sentence is unconstitutional

ATLANTA (AP) — Lawyers for a Georgia man whose execution was put on hold by a judge this week are arguing that he is ineligible for execution because he has cognitive impairments that cause him to function like a young child or someone with intellectual disability.

Lawyers for Virgil Delano Presnell Jr. said in a filing with the Georgia Supreme Court on Wednesday that he is a “cognitively disabled man” whose execution is prohibited by the U.S. Constitution. The U.S. Supreme Court ruled in 2002 that the execution of intellectually disabled people is unconstitutional, and Presnell's lawyers argue that includes people like him with fetal alcohol spectrum disorders.

Presnell's mother's heavy alcohol use while she was pregnant “profoundly damaged his developing brain months before he was born,” his lawyers wrote. Though he is now 68 years old, he “remains childlike and gullible” and has “enormous difficulty acquiring and processing new information, navigating social interactions, and reasoning abstractly," they wrote. His “functioning is that of an average nine-year-old child.”

Presnell killed an 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, in May 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.

The Wednesday filing means the state Supreme Court now has two matters concerning Presnell pending before it.

He had been scheduled to be put to death on Tuesday, but Fulton County Superior Court Judge Shermela Williams stayed his execution after his lawyers filed a lawsuit and emergency motion. In those filings, they claimed that the state had violated an agreement with lawyers representing people on death row that effectively put executions on hold during the coronavirus pandemic and established conditions under which they could resume. The lawsuit alleges that those conditions were not met before Presnell's execution was scheduled.

Williams' order blocked the state for 30 days from pursuing the execution of any death row prisoner covered by the agreement. The state has appealed that order to the Georgia Supreme Court.

Also Monday, Presnell's lawyers filed a petition in Butts County Superior Court challenging the constitutionality of his sentence based on his alleged cognitive impairments. The petition was filed in Butts County because that's where the prison that houses death row is located. Chief Superior Court Judge Thomas Wilson on Tuesday rejected the petition for procedural reasons, saying it failed to cite new law or evidence.

Presnell's lawyers' filing Wednesday asks the state Supreme Court to find that Wilson was incorrect and to send the case back to him for discovery and a hearing on the petition. They're also asking the high court to stay his execution until those proceedings are complete.

They argue that there have been advancements in the medical community's understanding of fetal alcohol spectrum disorders and intervening changes in the law since he previously challenged the constitutionality of his sentence.

“Mr. Presnell has been impaired since before his birth. But today our understanding of his condition has grown, and we must recognize that the ‘evolving standards of decency’ no longer permit his execution,” his lawyers wrote.

Presnell's lawyers made similar arguments of alleged cognitive impairments caused by his mother's drinking in a clemency case presented Monday to the State Board of Pardons and Paroles, the only authority that can commute a death sentence in Georgia. After holding a closed-door hearing, the five-member board declined to grant clemency for Presnell.

Presnell abducted the two girls as they walked home along a wooded trail from school. 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 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 girl’s body and confessed, the ruling says.