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As execution warrant lapses, families tell AP grief is fresh

This image provided by Georgia Department of Corrections shows Virgil Presnell. The life of Virgil Presnell, a Georgia man set to be executed Tuesday,...

This image provided by Georgia Department of Corrections shows Virgil Presnell. The life of Virgil Presnell, a Georgia man set to be executed Tuesday,...

ATLANTA (AP) — The families of two young girls who were abducted and attacked 46 years ago by a Georgia man who was scheduled to be put to death last week say they are “deeply upset and disappointed” that the execution was halted by a judge and the death warrant was allowed to expire Tuesday.

Virgil Delano Presnell Jr., 68, had been scheduled to die May 17. He 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.

“These families have suffered this trauma repeatedly and waited patiently for 46 years for closure,” the families said in a joint statement provided exclusively to The Associated Press. “They have remained quiet over these past 46 years but now they feel it is time to speak out about the frustration and anger they have endured during the long judicial process.”

Presnell was convicted in August 1976 on charges including malice murder, kidnapping and rape and was sentenced to die. His death sentence was overturned in 1992 but was reinstated in March 1999.

At an emergency hearing held May 16, the day before Presnell was scheduled to receive a lethal injection, Fulton County Superior Court Judge Shermela Williams issued an order temporarily blocking the state from proceeding with the execution.

The state appealed her order the next day but the Georgia Supreme Court did not immediately rule on that appeal. The stay remains in effect and the execution warrant that had been valid for seven days expired at noon on Tuesday.

Lisa Smith, Lori’s older sister, said Presnell caused her family so much damage and “it has been slow and painful waiting for his day to finally come.” She told the State Board of Pardons and Paroles during a closed-door hearing last week that "Presnell needs to be put to death, we have all waited long enough."

“Presnell has left wounds that will never heal,” she said in her statement to the parole board, a copy of which the family provided to the AP. “He instilled fears in me as a child that no one should ever have, he taught me at 12 to be fearful of everyone — trust no one — you are never safe.”

Their father, Scott Smith, told the parole board that “the grief is as fresh today as it was 46 years ago when she was brutally murdered and taken from her family.”

The five-member parole board is the only authority in Georgia that can commute a death sentence. Following the clemency hearing on May 16, the board declined to commute Presnell's sentence or stay his execution.

It was several hours later that Williams ordered the state not to proceed with the execution the next day. Her order came in response to a lawsuit and emergency motion filed by Presnell’s lawyers.

They alleged the state had violated an agreement that effectively put executions on hold during the coronavirus pandemic and established conditions under which they could resume. The lawsuit alleges those conditions were not met before Presnell’s execution was scheduled.

Because the execution date was prematurely set, the lawsuit argues, Presnell’s attorney did not have enough time to prepare for his clemency hearing.

Williams’ order blocked the state for 30 days from pursuing the execution of any death row prisoner covered by the agreement.

Presnell's lawyer, Monet Brewerton-Palmer, wrote in a clemency application that Presnell's mother’s heavy alcohol use while she was pregnant left him “profoundly brain damaged” and didn't understand the harm he was causing the girls. But because of COVID-19 restrictions on travel and prison visitation and the short notice before the execution date, the lawyer was not able to provide witnesses and sufficient evidence at the clemency hearing, the lawsuit says.

In a separate court filing that remains pending before the state Supreme Court, Presnell's lawyers argued that his execution would be unconstitutional because he has cognitive impairments that cause him to function like a young child or someone with intellectual disability.

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. Lori 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 Lori’s body and confessed, the ruling says.

Donna Smith Koon, was 11 when Lori died. She described her cousin as “a tomboy, a rough and tumble kind of kid" who was “always ready for an adventure” and had a “big wonderful smile that lit up her whole face.”

At the time, Koon's parents told her only the basic details of what happened. It was not until Presnell’s resentencing trial in 1999 that Koon learned the details of her cousin’s death.

“As the timeline of that day was laid out and every painful, torturous moment was told about what happened to those 2 little girls, the anger inside me began to build, I couldn’t believe what they had endured,” her statement to the parole board says.

“Our family has been patient and we have watched all the appeals one after another and another make their way up the ladder to be ruled on, they have all been exhausted, there are no more appeals, again it is time, it is time to carry out the punishment,” Koon wrote.

She said her family wants Presnell’s punishment carried out so they can “stop talking about how Lori died and begin to celebrate her short life.”