In a searing opinion released Tuesday, a unanimous Georgia Supreme Court strongly condemned Attorney General Chris Carr’s office for backtracking on an agreement halting most executions during the COVID-19 pandemic.
In its ruling, the state’s high court sided with the Federal Defender Program and a Fulton County judge who stayed the execution of Virgil Presnell Jr., Georgia’s longest serving death row prisoner, the night before he was set to die by lethal injection.
Justice Carla Wong McMillian, writing the unanimous opinion, decided that an email exchange between a state deputy attorney general and capital defense attorneys regarding the resumption of executions in Georgia during the pandemic constituted a written contract that had to be honored. That agreement meant Presnell’s execution should not have been set when it was.
“(W)e see no reason under general principles of contract law why a contract cannot be memorialized in an email,” McMillian wrote, noting the AG’s office failed to cite a single case in which an appellate court had arrived at a contrary conclusion.
In a concurring opinion, Justice Charles Bethel, joined by all five of the other justices who participated in the decision, blasted the AG’s office for reneging on its word and then arguing in court that its pandemic-era agreement wasn’t binding because it was sent via email.
The state AG’s office never should have brought this appeal, Bethel wrote.
“Everyone should be able to count on the state to honor its word,” he said. “... (T)he State should keep its promises because the people of Georgia, who are the very source of the state’s sovereignty, are owed a government that honors its commitments.”
Bethel said if the law allowed the state to avoid fulfilling the promises it made to capital defenders, the state Supreme Court would have been duty bound to let that happen.
“For the reasons explained in the opinion of the court, however, the law thankfully does not allow that avoidance here,” Bethel concluded. “It’s a shame anyone thought it appropriate to ask.”
Kara Richardson, a spokeswoman for state Attorney General Chris Carr, said her office declined comment.
Federal defenders representing Presnell appreciate “the careful and thorough” opinion reached by the unanimous court and were “especially heartened” by Bethel’s concurrence, their attorneys, Mike Caplan and Ronan Doherty, said.
The extraordinary rebuke of the AG’s office, specifically deputy state attorney general Beth Burton, who entered into the agreement, was anticipated after the court’s justices grilled a state attorney about it during arguments in September. At one point, McMillian questioned whether Burton’s misrepresentations, not only to the capital defenders but also to the state judiciary’s COVID task force, were “actionable in a disciplinary proceeding.”
As the pandemic raged last year, Georgia’s legal community formed a task force on how to handle pending court proceedings and what to do about death row prisoners facing execution.
After two months of negotiations, an agreement was reached between the AG’s office and capital attorneys. It was memorialized in an April 2021 email from Burton, who oversees the office’s death-penalty litigation. She wrote, “this email serves as the agreement.”
In the agreement, the state agreed to halt most executions until after the pandemic and it gave three conditions that must be met before they would resume: the statewide judicial emergency in place at the time had to be lifted, normal visitation would resume at state prisons and the vaccine would be “readily available to all members of the public.”
It also said the first person killed when executions resumed would be Billy Raulerson, who sits on death row for killing three Ware County residents in 1993. The state said it would not seek new execution warrants for any other inmate “before a total of six months after the time the above three conditions are met.”
The agreement offered some relief to the state’s capital defenders, who feared they wouldn’t have enough time to defend their clients given the COVID restrictions in place.
Burton’s email was sent to Anna Arceneaux, executive director of the Georgia Resource Center, a nonprofit legal organization that defends people sentenced to death.
“It was a huge relief to us that we knew there was a plan we could rely on,” Arceneaux said previously. “The agreement clearly specified that Raulerson would be first.”
But the AG’s office backed off that accord, setting Presnell’s execution even though one of the agreement’s three conditions had yet to be met. The defenders filed suit, leading Fulton County Judge Shermela Williams to issue an injunction in May staying Presnell’s execution just hours after he was denied clemency.
Attorneys had been caught off guard when the AG’s office notified Presnell that he would the first person executed in the state since the pandemic. His attorney found out on April 25, just two days before his death warrant was signed by a Cobb County judge. The next day, she learned an expert witness hired to speak on Presnell’s behalf during his clemency hearing suffered a cardiac event that required emergency surgery.
Presnell kidnapped two Cobb County girls as they walked home from Russell Elementary School in May 1976, raping a 10-year-old and then drowning 8-year-old Lori Ann Smith in a nearby creek when she tried to run. He was sentenced to death later that year, and again in 1999 after his first sentence was overturned.
