High court grills attorney general's office over Presnell execution

Sep. 21—ATLANTA — Lawyers from the office of Attorney General Chris Carr were grilled Tuesday by the Supreme Court of Georgia over their conduct in seeking to carry out the death sentence of Virgil Delano Presnell Jr., who was scheduled to be executed in May.

Carr's office had asked the court to overturn the decision of a Fulton County judge who blocked the execution the night before it was set to be carried out.

Superior Court Judge Shermela Williams sided with Presnell's attorneys in finding Carr's office had violated an agreement on when executions could resume after the pandemic.

Presnell has been on death row since 1976 for the murder of eight-year-old Lori Smith and rape of her 10-year-old friend. He is the longest-serving inmate on Georgia's death row, according to the attorney general's office.

In April 2021, the attorney general's office negotiated an agreement with defense attorneys laying out a series of COVID-related conditions for when executions would resume. The first execution was set to be Billy Raulerson, who was sentenced to death in 1996 for the murder of three people.

But Presnell's attorneys say that in April 2022, Raulerson's lawyers were on vacation when the execution would have been carried out. Presnell was then bumped up to the top of the list.

"The various stakeholders considered this problem solved," Ronan Doherty, a lawyer representing the Federal Defender Program, told the justices Tuesday. "Everybody understood this to be a binding agreement."

Doherty said the state's decision to move ahead with executing Presnell forced his lawyers to prepare for a clemency hearing without being able to present expert testimony and other live witnesses because of COVID restrictions.

Brooke Chaplain, of the attorney general's office, argued to the court the agreement — spelled out in an email — didn't constitute a legally binding contract.

"Consistently throughout this case, the lower court and the Federal Defenders have to stretch to find the existence of a written contract," Chaplain said.

But that argument was rejected out of hand by several of the high court's justices.

"I don't understand how that could not be a contract," said Justice Verda Colvin.

The email in question was specified by the attorney general's office as taking the place of a "formal MOU (memorandum of understanding)," which was in the works before the agreement was reached, according to Presnell's attorneys.

"The terms ... are in writing," added Justice Carla Wong McMillian. "That's as close as you can get to a written contract."

Justice Charlie Bethel was even more harsh in his assessment.

"As a citizen — to listen to my government tell me that I'm not as good as my word if I found a technicality around it — it is hard for me to imagine why the state of Georgia would insist that something is not a contract, when it's clearly what it agreed to do," Justice Bethel said. "That is very difficult for me to process ... I want to reiterate that is a frustrating posture for a citizen to be in."

Doherty, one of Presnell's attorneys, argued that had the situation been reversed, "I think we can all expect that the attorney general's office would have shown up with this agreement and said, 'The parties have already worked this out.'"

Chaplain, of the attorney general's office, at one point said Beth Burton (the deputy attorney general who authored the agreement) had no legitimate authority to do so on behalf of the state. Justice McMillian suggested if Burton indeed lacked the authority to broker the deal, it could constitute misconduct on her part.

"Are her misrepresentations to the parties in this case, and the COVID task force, actionable in a disciplinary proceeding?" McMillian asked, which Chaplain denied was the case.

Both parties in the case will now await a decision from the high court, which did not indicate when a ruling might be handed down.