Despite defense claims that DNA testing would clear “clouds of doubt” about Carlton Gary’s guilt in Columbus’ 1970s “Stocking Stranglings,” Muscogee Superior Court Judge Robert Johnston again has rejected the condemned man’s request that his execution be stayed until such tests are conducted.
Jack Martin, Gary’s Atlanta defense counsel, said Thursday evening that he now will appeal directly to the Georgia Supreme Court and also ask the state Board of Pardons and Paroles to delay the execution. The board meets to hear the Gary case at 9 a.m. Monday in Atlanta.
In rejecting Martin’s request for reconsideration, Johnston wrote that he “understands and appreciates the gravity of this case for the defendant and for the state.”
Martin filed his motion for reconsideration around 5 p.m. Wednesday. Johnston’s denial was filed shortly before noon Thursday.
Gary’s execution is set for 7 p.m. Wednesday at the state Diagnostic and Classification Prison in Jackson, Ga.
Gary in 1986 was convicted in three of the seven strangling cases that occurred in 1977 and 1978. DNA testing was not used in court until the late 1980s.
In asking Johnston to reconsider, Martin again asked why prosecutors would not want to confirm that Gary is the Columbus Stocking Strangler. He also listed evidence indicating Gary is not the strangler, evidence a jury did not see during Gary’s trial, but which his defense team uncovered later.
Martin said the DNA tests could be done in 30 days, “hardly an extended delay in the scheduled execution.”
On Tuesday, District Attorney Julia Slater filed a response opposing Martin’s Monday motion for the stay and the testing. Slater wrote that Martin had failed to meet the standards state law sets for DNA testing and that he was just trying to delay Gary’s execution.
She also argued that the DNA testing would make little difference, as Gary’s conviction was based on other factors.
Martin in his motion for reconsideration made reference to her response, which said Gary would be guilty even if someone else left the semen found at some of the crime scenes.
“The state goes so far as to claim that the testing would be inconsequential even if ‘defendant’s hypothetical DNA testing showed that he did not personally commit rape,’ a remarkable concession,” he said. “Does the state, after prosecuting the defendant as the one and only Columbus Stocking Strangler who cruelly raped and strangled to death his victims, now allow for the possibility that someone else committed the rape/murders and the defendant’s guilt is only as some sort of ‘accomplice’?”
Martin also challenged the validity of the evidence used to convict Gary and cited other evidence that would have excluded him as the killer.
A woman who in September 1977 survived an attack by an intruder believed to be the strangler identified Gary as her assailant after she saw him on TV in 1984, when he was arrested. Martin said that when assaulted, the woman had been sleeping with the lights off, so she could not have seen the man clearly, and she later told police that “she would not be able to identify the subject and she was not able to describe him.”
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