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.”
Fingerprint evidence that placed Gary at four of the stranglings also is questionable, Martin wrote. During Gary’s appeals, a former FBI expert said the fingerprints lacked sufficient matches and were “borderline” in identifying a suspect; no photographs showed where at the crime scenes they were found; and reportedly some were in “odd locations.”
Prints found on a window screen “could have only been left if the person removing the screen had crossed his arms while lifting the screen, an implausible circumstance,” Martin wrote.
Before DNA testing was available, prosecutors used testimony from a crime lab technician who said the strangler left semen matching Gary’s common blood Type O, but that the fluids came from “a weak secretor or non-secretor,” someone who doesn’t readily excrete blood-type markers in his other bodily fluids. Gary, after his arrest, was shown to be a “strong secretor,” Martin said, so that evidence doesn’t match.
The prosecution claimed Gary’s secretion status may have changed over time.
“These claims are contrary to the consensus of scientific authority and all published research,” Martin wrote. “They are simply false.”
Among the evidence indicating Gary could not be the strangler is a bite mark found on the breast of victim Janet Cofer.
A dental expert compared a mold made from that mark to Gary’s teeth and decided that “based upon a crooked lower tooth on the bite mark mold,” Gary’s teeth did not match, Martin wrote.
Prosecutors have said the mold doesn’t matter because Gary had dental work in prison, but the defense maintains Gary never had any work done on his lower teeth.
Martin also cited a shoe print found on an air conditioner outside the home of Ruth Schwob, who survived an attack on Feb. 11, 1978. The intruder was believed to have stood upon that unit to climb into Schwob’s kitchen window. The print came from a size 9 tennis shoe. Gary wears a size 13½, Martin wrote.
A similar shoe print was found on a bath mat in a hotel room in Albany, N.Y., where a woman named Nellie Farmer was raped and strangled in April 1970.
Gary was implicated in that case, but blamed the slaying on another man who was prosecuted and acquitted. Prosecutors in the stranglings used the Farmer case to show Gary’s pattern of behavior, partly because investigators said Gary also blamed the Columbus stranglings on another man.
As for claims that the defense now is seeking DNA tests just to delay Gary’s execution, Martin said the U.S. Supreme Court rejected Gary’s third appeal Thanksgiving weekend. Martin and Aimee Maxwell of the Georgia Innocence Project went to the Columbus Police Department to examine evidence on Dec. 4, as soon as that could be arranged. Having found samples suitable for DNA testing, he filed a motion requesting that on Dec. 7, as soon as he would visit Georgia’s death row to get Gary’s assent. So he acted as quickly as possible, under the circumstances, he said.
Although he had seen that same evidence in 2001, he needed Maxwell’s advice on whether it was suitable for DNA tests, he said.
He concluded: “Clouds of doubt have lingered over this case for decades. Both the defendant and the victims deserve a clear and definitive answer as to whether Carlton Gary was the Columbus Stocking Strangler and is deserving of execution.... Our system of justice is designed to punish the guilty and exonerate the innocent. We have available DNA evidence which can do just that.”
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