ATLANTA (AP) — Georgia’s highest court on Wednesday declined to hear an appeal filed for a man on death row claiming that his execution would be unconstitutional because he has cognitive impairments that cause him to function like a young child.

Lawyers for Virgil Delano Presnell Jr. had argued in a filing with the Georgia Supreme Court that he suffered brain damage caused by his mother’s heavy alcohol use during pregnancy. A 2002 U.S. Supreme Court ruling that prohibits the execution of intellectually disabled people includes people like him with fetal alcohol spectrum disorders, they argued.

In an order issued Wednesday, the state Supreme Court declined to hear the appeal based on the constitutionality argument without giving any explanation.

The case was one of two pending before the state high court for Presnell, who killed an 8-year-old girl and raped her 10-year-old friend in May 1976 and had been scheduled to be executed last month. In the other case, the state is appealing a judge’s stay of execution that remains in effect until later this month.

In the petition filed in Butts County, where death row is located, Presnell’s lawyers had argued that their 68-year-old client “remains childlike and gullible” and has “enormous difficulty acquiring and processing new information, navigating social interactions, and reasoning abstractly.” They said new medical knowledge and changes in the law meant the petition should be considered.

Lawyers for the state had argued that Presnell had previously raised similar arguments and that his petition was therefore barred for procedural reasons.

Presnell abducted the two girls on May 4, 1976, as they walked home along a wooded trail from school in Cobb County, just outside Atlanta. He drove them to a secluded wooded area, had them undress and raped the older girl, according to evidence at trial outlined in a Georgia Supreme Court ruling. The younger girl tried to run, but Presnell caught her and drowned her in a creek, the ruling says.

He locked the 10-year-old girl in the trunk of his car and then left her in a wooded area when he got a flat tire, saying he’d return. She escaped and ran to a nearby gas station and described Presnell and his car to police.

Officers found him changing his tire at his apartment complex. He denied everything at first but later led police to the 8-year-old girl’s body and confessed, the ruling says.

Presnell had been scheduled to be executed May 17, but Fulton County Superior Court Judge Shermela Williams stayed his execution after his lawyers filed a lawsuit and emergency motion. In those filings, they claimed that the state had violated an agreement with lawyers representing people on death row that effectively put executions on hold during the coronavirus pandemic and established conditions under which they could resume. The lawsuit alleges that those conditions were not met before Presnell’s execution was scheduled.

Williams’ order blocked the state for 30 days from pursuing the execution of any death row prisoner covered by the agreement.

The families of the two girls last week told The Associated Press that they’ve waited 46 years for justice and were disappointed that the execution was delayed.

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