Georgia Supreme Court upholds agreement to delay death-row execution 

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Georgia Supreme Court

Credit: File photo

ATLANTA — An agreement reached by email constitutes a valid contract the state must uphold, even if that means delaying the execution of a person on death row, the Georgia Supreme Court ruled unanimously Tuesday.  

The email was an agreement between defense lawyers and the state Attorney General’s office that capital cases would not move forward during the COVID pandemic unless certain conditions were met.  

One result was a delay in the execution of Virgil Presnell Jr., the longest-serving person on Georgia’s death row. Presnell was sentenced to death in 1976 after convictions on murder, rape, and kidnapping charges.  

In April of last year, a deputy attorney general and Presnell’s lawyers agreed — via email — that no executions could take place until six months after three conditions related to the COVID pandemic were met. Vaccines had to be readily available to the public, the state Department of Corrections must have resumed its normal visitation rules, and the COVID-19 statewide judicial emergency order must have been lifted.  

The Attorney General’s office moved ahead and set Presnell’s execution for May of this year but provided only two days’ advance notice to his lawyers. They sued the state for breach of contract, arguing Georgia had violated its agreement, that the conditions had not all been met, and that six months had not elapsed. 

Lawyers for the state argued the state cannot be sued because of the doctrine of sovereign immunity, which bars lawsuits against the state government without its consent. A Fulton County court judge sided with Presnell and his lawyers and blocked the state from moving ahead with the execution.

The state then appealed to the Georgia Supreme Court, arguing the attorneys’ email agreement was not a written contract that could override the sovereign immunity doctrine.

The state Supreme Court unanimously sided with Presnell and his lawyers on Tuesday, finding the email agreement was a valid contract that the state violated by scheduling the execution. 

“[T]he state has not cited a single case, nor are we aware of one, in which our appellate courts have adopted a per se rule that emails cannot create a written contract sufficient to waive sovereign immunity,” Justice Carla Wong McMillian wrote. “To the contrary, the great weight of authority has indicated that, as a general matter, emails may constitute written contracts.”  

“Though it may prove inconvenient, uncomfortable, or undesirable to the state … everyone should be able to count on the state to honor its word,” Justice Charles Bethel added in a concurring opinion. “The 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.”

This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.