State attorney seeks judge's recusal in Stocking Strangler case

Prosecution: Judge Frank Jordan Jr. shouldn't have 'Big Eddy Club' book

tchitwood@ledger-enquirer.comNovember 20, 2013 

The Georgia Attorney General is asking Muscogee Superior Court Judge Frank Jordan Jr. to recuse himself from the long-running case of convicted Stocking Strangler Carlton Gary because the judge had a copy of the book "The Big Eddy Club" in his office.

The motion filed Monday comes about two weeks before Jordan is to hold a hearing Dec. 3 on Gary's motion for a new trial based partly on conflicting DNA test results from evidence in two of the stranglings and from a burglary and rape that immediately preceded the seven serial killings that terrorized Columbus in 1977-1978.

British author David Rose's 2007 book named for an exclusive Green Island Hills dining club is critical of the police investigation and the prosecution, alleging authorities deliberately concealed evidence of Gary's innocence in the heinous rapes and murders. Rose, who has assisted in Gary's defense, is among those on Gary's list of witnesses in the Dec. 3 hearing on the new trial motion.

The recusal motion filed Monday by Senior Assistant Attorney General Sabrina Graham says Rose's book constitutes "an extrajudicial source of information" the judge should not have, as his decisions must be based solely on the evidence presented in court. The book's display in Jordan's office on the Columbus Government Center's 10th floor also creates the impression he is not impartial, Graham writes.

Referring to Jordan as "the Court," the motion states:

"Additionally, the existence of this book in the Court's personal library indicates this book was either purchased by the court, which would mean it had an interest in learning about Mr. Rose's extrajudicial investigation, or this book was given to the court by a party with an interest in Gary's case. Also the prominent display of this book in the Court's chambers, which is clearly an extrajudicial source of information, creates the appearance of partiality."

Appended to the motion is an affidavit in which Graham states she came to Columbus on Nov. 8 to meet with District Attorney Julia Slater and Senior Assistant District Attorney Don Kelly. During this gathering they conferred with Senior Superior Court Judge Bill Smith, who as district attorney prosecuted Gary in 1986, and with Special Assistant District Attorney Susan Boleyn, who is assisting in Gary's prosecution now.

Writes Graham:

"During this conference it was revealed to Ms. Boleyn and I that the Honorable Frank J. Jordan had displayed in his office the book entitled 'The Big Eddy Club' written by David Rose. … Mr. Rose makes many findings of fact and conclusions that are directly at odds with the evidence presented during Carlton Gary's 1986 death penalty trial. … This book contains many criticisms of the State of Georgia's prosecution of Carlton Gary and attempts at every turn possible to discredit the evidence against Mr. Gary proven at trial."

The motion asks for Jordan to recuse himself voluntarily, or for another judge to rule whether Jordan should be disqualified.

Jordan was not at liberty to comment on the motion. The attorney general's office declined comment. Slater was not immediately available.

Gary's lead defense counsel, Atlanta attorney Jack Martin, said he believes the motion has no merit, and appears to be a last-ditch effort to scuttle the Dec. 3 hearing.

"It's awful late in the game to be raising something like this," the attorney said. "I think it's untimely, and completely without any basis."

He thought it likely someone gave Jordan the book, which has stirred controversy here since it came out six years ago. Its contents are no secret, Martin said, noting that in 2009 Rose cited the book in a brief with the Georgia Supreme Court during Gary’s appeals.

“It’s just been something that surrounds this case,” Martin told a reporter, of Jordan adding, “I’m sure he’s read some of your newspaper articles. So what?”

Martin said he will ask that Gary’s defense team be allowed to file a response to the recusal motion. He was unsure how the issue might affect the hearing set for Dec. 3.

Rose wrote in an email Wednesday that copies of his book accompanied the friend of the court brief he filed with the state Supreme Court, making the book an exhibit and part of the official record.

Each Supreme Court justice got a copy, he said, of Jordan asking, “How can a judge be expected to recuse himself because he has part of the case record on his shelves? It makes no sense.”

The case so far

Arrested for the stranglings three years before he was convicted and sentenced to death, Gary today remains in Georgia's death row prison in Jackson. He was hours away from execution Dec. 16, 2009, when the state Supreme Court issued a stay and ordered a Superior Court judge here to consider DNA testing. The defense and prosecution came to a consent agreement on such testing Feb. 19, 2010.

The results reported to the court proved conflicting: DNA evidence from the Oct. 25, 1977, rape and strangling of Martha Thurmond, 69, of 2614 Marion St., did not match Gary. But he was matched to evidence from the Sept. 24, 1977, rape and strangling of Jean Dimenstein, 71, of 3027 21st St.

Gary was convicted of Thurmond's murder, but not Dimenstein's. Though Smith maintained a single killer committed all seven stranglings, he chose to narrow Gary's prosecution to just three of the cases. Besides Thurmond, Gary was convicted in the murders of Florence Scheible, 89, of 1941 Dimon St., whose body was found Oct. 21, 1977, and Kathleen Woodruff, 74, of 1811 Buena Vista Road, found dead Dec. 28, 1977.

Besides Dimenstein, the stranglings for which Gary was not convicted were of Ferne Jackson, 60, of 2505 17th St., on Sept. 15, 1977; Mildred Borom, 78, of 1612 Forest Ave., on Feb. 12, 1978; and Janet Cofer, 61, of 3783 Steam Mill Road, on April 20, 1978.

With conflicting results reported from the first DNA tests, Gary's defense team in 2011 sought additional testing on evidence from the Sept. 11, 1977, rape and beating of 64-year-old Gertrude Miller of 2703 Hood St.

Gary was never charged with Miller's assault, but Smith used it to show a pattern of criminal conduct, and had Miller identify Gary as her assailant during his 1986 trial. Miller has died since then.

In March 2012, the tests conducted by Bode Technology Group of Lorton, Va., found sperm cells on a slip Miller wore to the hospital yielded a partial DNA profile that did not match Gary.

With such evidence favoring his client, Martin filed a motion July 9, 2012, seeking a new trial. That's what Jordan is to consider Dec. 3.

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