In April 2021, deputy state attorney general Beth Burton emailed lawyers representing people on death row about how the state was going to handle executions during the COVID-19 pandemic.
“This email serves as the agreement,” Burton wrote, although the Attorney General’s Office would later renege on the pact.
On Tuesday, a lawyer representing the AG’s office told skeptical Georgia Supreme Court justices that Burton’s “agreement” was not enforceable. And she took pointed observations from one jurist who expressed dissatisfaction that the AG’s office had gone back on its word.
“Despite the unique underlying facts of this case and a preliminary injunction that essentially acts as a stay on all executions in the state of Georgia, this is a case about contract law,” said state attorney Brooke Chaplain, opening her arguments before the court. She called Burton’s email a “position statement,” not an agreement, and contended it did not meet the conditions to be a written contract under state law.
Justice Charles Bethel made it clear he did not like the state’s position.
“It is very frustrating, as a citizen, to listen to my government tell me I’m not as good as my word if I found a technicality around it,” Bethel said. “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. That is very difficult for me to process.”
“Yes, your honor, I understand,” was Chaplain’s only reply.
In the agreement, the state agreed to halt executions until after three conditions were met: the statewide judicial emergency in place at the time had to be lifted, normal visitation was resumed at state prisons and the COVID-19 vaccine would be readily available to all members of the public.
It said the first person to be put to death when executions resumed would be Billy Raulerson, who killed three Ware County residents in 1993. And the state said it would not seek new execution warrants for any other person on death row “before a total of six months after the time the above-three conditions are met.”
But this past April, before all three conditions had been met (normal prison visitation had yet to resume), the AG’s office backed out of the agreement. It informed Virgil Presnell’s lawyers two days – not six months – before a warrant was signed for his execution, which was then set less than one month away on May 17.
“You worked together,” Bethel said. “You came up with an agreement. Then you didn’t follow it.”
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Because Presnell’s lawyers did not have fair warning about the execution warrant, they were unable to fully prepare for his clemency hearing before the state Board of Pardons and Paroles, said Atlanta lawyer Ronan Doherty, who argued on behalf of Presnell’s legal team.
The agreement had been reached after the state judiciary’s COVID-19 task force tried to find ways on numerous fronts for the courts to deal with the pandemic. After the agreement was reached between Burton and lawyers representing people on death row, it was made known to the judicial task force.
After the execution warrant was obtained, federal public defenders representing Presnell filed a lawsuit and obtained the injunction from Fulton County Superior Court Judge Shermela Williams. The state is appealing her ruling.
Presnell sits on death row for kidnapping two girls as they walked home on May 4, 1976, from Russell Elementary School in Smyrna. He raped one girl, a 10-year-old, and then killed 8-year-old Lori Ann Smith when she tried to run away, drowning her face-down in nearby Nickajack Creek.
On Tuesday, Justices Verda Colvin and Carla Wong McMillian both indicated they didn’t buy Chaplain’s argument that the emailed agreement from Burton was a position statement and not a contract.
“She didn’t say position statement, she said this is our agreement,” Colvin said.
“We have an email that says this is an agreement between the parties that is in lieu of a formal memorandum of understanding,” McMillian said. “That’s as close as you can get to a written contract, if it is a written contract.”
McMillian also asked: “What is the point of this email? Is it to try to get them to stop doing what they were trying to do? Or to lead them astray to stop them working on their death penalty cases?”
Chaplain also argued that Burton, as deputy AG, did not have the authority to bind local district attorneys and even her office from adhering to the agreement.
But McMillian noted that Burton had made representations about the agreement to all the parties, including the judicial task force. Then McMillian asked her most pointed question yet: “Are her misrepresentations to the parties in this case and the COVID task force actionable in a disciplinary proceeding?”
“Your honor, no, I do not believe they would be actionable,” Chaplain replied, saying Burton was trying to deal with the COVID-19 pandemic.
The court is expected to issue its decision in the coming months.
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