Virgil Delano Presnell Jr., 68, abducted Lori Ann Smith, 8, and her 10-year-old friend while they were walking home from elementary school in Cobb County 46 years ago.
He raped the 10-year-old and drowned Smith in a creek when she tried to run. Police found him outside his apartment after the murder. He initially denied the crime, but eventually confessed and led them to the girl's body.
He was convicted later that year and sentenced to death on charges of malice murder, kidnapping and rape.
His sentence was overturned in 1992 but was reinstated in 1999.
His lawyer argued in a clemency petition that Presnell had severe brain damage, potentially caused by his mother drinking while she was pregnant, and didn’t know the harm he was causing the girls during the attacks. His lawyer has also argued that he suffered sexual abuse in his family as a child.
He is deeply sorry for the pain he caused and wishes he could "take it all back," attorney Monet Brewerton-Palmer wrote in the clemency application submitted to the State Board of Pardons and Paroles.
Presnell drove the girls
to a wooded area and made them undress before raping the older girl. After he murdered Smith, he locked the older girl in the trunk of his car, then left her in a wooded area when he got a flat tire. She was able to run to a gas station and contact police.
Presnell was denied clemency by the Georgia State Board of Pardons and Paroles. The state Department of Corrections now has until May 24 to carry out the execution, according to his execution warrant.
The state appealed the judge’s order to the Georgia Supreme Court on Tuesday, but the court had not ruled by 7 p.m. ET when Presnell’s execution was supposed to take place.
Fulton County Superior Court Judge Shermela Williams ordered the stay because of a lawsuit filed by the Federal Defender Program on behalf of Presnell’s lawyers that claims the state is violating an agreement that put executions on hold during the coronavirus pandemic and set stipulations on when they could continue.
The lawsuit says that under an agreement between Attorney General Chris Carr’s office and lawyers who represent people on death row, the state would halt almost all executions until six months after three conditions had been met: the expiration of the state’s COVID-19 judicial emergency, the resumption of normal visitation at state prisons and the availability of a COVID-19 vaccine "to all members of the public."
While the judicial emergency ended in June, prisons are still using a modified visitation policy and children under 5 still can’t get vaccinated, Presnell’s lawyers argue.
He would be the first person executed in Georgia this year.
The Associated Press contributed to this report.