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Court holds off on death row inmate's appeal decision

Lawyers for Virgil Delano Presnell Jr. argued that the state did not satisfy its conditions to proceed with executions.

ATLANTA — Georgia Supreme Court heard arguments on Thursday from lawyers for the second time in an attempt to overturn Virgil Presnell Jr.'s conviction and death row sentence.

Presnell has been behind bars since 1976. A court convicted him of killing an 8-year-old girl and raping her 10-year-old friend after abducting them as they walked home from their school in Cobb County. 

RELATED: Georgia Supreme Court denies death row inmate's appeal

Attorneys claimed Thursday that an agreement between the court and death row lawyers was violated. During the pandemic in Spring 2021, Georgia put executions on hold and established conditions under which they could resume.

A few months ago --  in May -- they decided to set a date for Presnell's execution which immediately was met with a lawsuit claiming the state's conditions were not met before the execution was scheduled. 

Both parties went back and forth on whether the agreement to put executions on hold was legitimate; ultimately, the judge did not make a decision in Thursday's case.  

Previously, a judge rejected attorneys' request to overturn his execution. They argued that Presnell is a "cognitively disabled man" and couldn't be put to death, but the judge said they failed to cite a new law or any evidence. 

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More on the case:

Presnell was found guilty of killing an 8-year-old girl, Lori Smith, and raping her 10-year-old friend after abducting them as they walked home from school in Cobb County on May 4, 1976. He was convicted in August 1976 on charges including malice murder, kidnapping and rape and was sentenced to death. 

His death sentence was overturned in 1992 but was reinstated in March 1999.

RELATED: Last meal announced for Georgia inmate scheduled to be executed

Lawyers had argued he was "profoundly brain damaged" and could not be put to death. Presnell's mother drank large amounts of alcohol. At the same time, she was pregnant with him, and a history of serious developmental disabilities is well-documented in his school records, his attorney wrote in his since-denied clemency application, adding that he grew up in an “abusive and unstable environment.” Sexual abuse was “endemic” in his family.

RELATED: Execution date set for man convicted of 1976 kidnapping, rape and murder in Cobb County

The application said that even when he was arrested, his significant cognitive limitations were on display. Under questioning by police, he confessed to every open crime against children in the county.

Presnell suffered prenatal brain damage and likely suffers from a fetal alcohol spectrum disorder, his lawyers argued, but that wasn't an available diagnosis at the time of his trial nearly 46 years ago.

“We did not know better in 1976. But we know better today. A just society does not execute the developmentally disabled,” the application said.

A joint statement from the girls' families after Presnell's execution was put on hold said that it had been "slow and painful waiting for his day to finally come" and that he "needs to be put to death, we have all waited long enough."

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