ATLANTA — Lawyers for a Georgia man whose execution was stayed by a judge this week argue he is not eligible for execution because he has cognitive impairments that cause him to function like a young child or a person with an intellectual disability.
Lawyers for Virgil Delano Presnell Jr. said in a Georgia Supreme Court filing on Wednesday that he is a “cognitively disabled person” whose execution is prohibited by the U.S. Constitution. The U.S. Supreme Court ruled in 2002 that executing people with mental disabilities is unconstitutional, and Presnell’s lawyers argue that includes people like him with fetal alcohol spectrum disorder.
Presnell’s mother’s heavy drinking during her pregnancy “deeply damaged her developing brain months before she was born,” her lawyers wrote. Although he is now 68, he “remains childish and gullible” and has “tremendous difficulty acquiring and processing new information, navigating social interactions, and reasoning abstractly,” they wrote. . His “functioning is that of an average nine-year-old.”
Presnell killed an 8-year-old girl and raped her 10-year-old friend after abducting them on their way home from school in Cobb County, just outside Atlanta, in May 1976. He was convicted in August 1976 of malicious murder. , kidnapping and rape and was sentenced to death. His death sentence was overturned in 1992 but reinstated in March 1999.
Wednesday’s filing means the state Supreme Court now has two cases regarding Presnell pending before it.
He was due to be put to death on Tuesday, but Fulton County Superior Court Judge Shermela Williams stayed his execution after his lawyers filed a complaint and urgent motion. In those documents, they claimed the state violated an agreement with lawyers representing death row inmates that effectively suspended executions during the coronavirus pandemic and set out the conditions under which they could resume. The lawsuit alleges that these conditions were not met before the scheduled date of Presnell’s execution.
Williams’ order barred the state for 30 days from proceeding with the execution of any death row inmate covered by the agreement. The state appealed this order to the Supreme Court of Georgia.
Also on Monday, Presnell’s attorneys filed a motion 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 is where the prison that houses death row is located. Superior Court Chief Justice Thomas Wilson on Tuesday dismissed the motion on procedural grounds, saying it did not cite new law or evidence.
Presnell’s attorneys’ filing on Wednesday asks the state Supreme Court to find that Wilson was incorrect and return the case to him for discovery and a hearing on the motion. They are also asking the High Court to stay his execution until these proceedings are completed.
They argue there have been advancements in the medical community’s understanding of fetal alcohol spectrum disorder and changes in the law since he previously challenged the constitutionality of his sentence.
“Mr. Presnell has been impaired since before he was born. But today our understanding of his condition has improved, and we must recognize that ‘evolving standards of decency’ no longer permit his execution,” wrote his lawyers.
Presnell’s attorneys made similar arguments about alleged cognitive impairment caused by his mother’s drinking in a clemency case presented Monday to the state Board of Pardons and Parole, the only authority that can commute a death penalty in Georgia. After holding a closed hearing, the five-member board refused to grant Presnell clemency.
Presnell abducted the two girls as they walked home along a wooded path from school. He drove them to a secluded wooded area, made them strip naked and raped the eldest daughter, according to trial evidence described in a Georgia Supreme Court decision. The girl tried to run away, but Presnell grabbed her and drowned her in a stream, according to the ruling.
He locked the 10-year-old girl in the trunk of his car then left her in a wooded area when he had a flat tire, saying he would be back. She ran to a nearby gas station and described Presnell and her car to police.
Officers found him changing his tire at his apartment complex. He initially denied everything, but then led police to the 8-year-old girl’s body and confessed, according to the ruling.