Prosecutors: DNA test appearing to clear Carlton Gary in 1977 rape, strangling was wrong

tchitwood@ledger-enquirer.comNovember 21, 2013 

The DNA test that appeared to clear convicted "Stocking Strangler" Carlton Gary in one of the heinous serial killings of 1977-78 was wrong, according to prosecution court filings today.

The documents state the Georgia Bureau of Investigation in a report dated Nov. 14 found the male DNA profile attributed to evidence tested from Martha Thurmond’s Oct. 25, 1977, rape and strangling “is actually the result of contamination from a quality-control sample.”

The agency has confirmed the error, having “conclusively matched the errant DNA profile to a quality control sample maintained by the laboratory,” according to the motion filed by District Attorney Julia Slater and Senior Assistant District Attorney Don Kelly.

The revelation could remove the primary exhibit supporting Gary’s motion for a new trial, set for a Dec. 3 hearing before Muscogee Superior Court Judge Frank Jordan Jr.

Noting the glass slide holding the evidence was numbered 55, the prosecutors wrote:

"Because the original testing did not show a mixed profile, there was no male DNA found on slide #55.... Gary’s argument that DNA testing on slide #55 showed that he was not the rapist and murderer of Martha Thurmond is not now supported by any evidence. In fact, Gary’s fingerprints were found at the point where he entered her home, he gave a statement to detectives on the night of his arrest admitting to entering her home, he provided details that were not released to the public, and he even directed the detectives to the home.”

A test on evidence from the Sept. 11, 1977, rape and beating of Gertrude Miller, which immediately preceded the seven serial killings that terrorized Columbus through the spring of 1978, also reportedly showed a DNA that didn’t match Gary.

Prosecutors discounted that evidence, saying it came from clothing Miller wore to the hospital, but may not have been wearing when she was attacked. The items were a white sleeping gown, white slip and underwear.

“The items tested relating to Mrs. Miller’s case were not ‘intimate items’ such as vaginal swabs tested in other cases, which would be most likely to reveal the identity of the perpetrator,” wrote Slater and Kelly.

Prosecutors now maintain the only valid DNA test came from the Sept. 24, 1977, rape and strangling of Jean Dimenstein: “The semen found in the vaginal washings from victim Mrs. Jean Dimenstein positively matched ... which proves that Gary is guilty of the rape and murder of Mrs. Dimenstein.”

Gary’s lead defense counsel Jack Martin called the motion “shocking,” as it casts doubt on other DNA testing the GBI crime laboratory has conducted.

“If this shows how incompetent that lab is, then all their results, not only this case but in other cases, are suspect,” he said. Authorities said the problem came to light when DNA results in an unrelated case were contaminated by a control sample — a known DNA sample technicians use to test their equipment.

The discovery prompted the agency to require that all control samples be included in Georgia’s DNA database, in case they matched evidence in other cases.

That revealed the mysterious DNA profile from the Thurmond test was the control sample the GBI laboratory had been using.

Referring to the state Department of Forensic Sciences as the DOFS, prosecutors explained the mistake:

“The DOFS investigation revealed that the quality control sample was used in the same work area the day before the testing on the Thurmond slide. It is believed that some ... equipment in the work area then contaminated the Thurmond slide.”

Said Martin: “It is incredibly suspicious that this would come up at the very last minute. Either the GBI crime lab is incredibly incompetent or there’s been manipulation of the evidence.”

He wants a full investigation, and believes the Dec. 3 hearing must be postponed pending the outcome.

Slater said prosecutors are ready to proceed:

“As of now, the hearing is still on, and the state absolutely looks forward to the hearing on Dec. 3,” she said.

Still another issue hangs in limbo: The Georgia Attorney General filed a motion Monday asking Judge Jordan to recuse himself because he had a copy of the book “The Big Eddy Club” in his office library.

British author David Rose’s 2007 book is critical of the police investigation and the prosecution, alleging authorities concealed evidence of Gary’s innocence. Rose has assisted in Gary’s defense.

The recusal motion said 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 also creates the impression he is not impartial, the attorney general said.

Rose wrote in an email Wednesday that copies of his book accompanied a 2009 friend of the court brief he filed with the state Supreme Court, making the book part of the official record.

A representative for Attorney General Sam Olens said the Supreme Court could not have accepted any new evidence during an appeal: “The book is not a part of the official record of the case because new evidence cannot be admitted during the appellate process,” Communications Director Lauren Kane wrote in an email.

Like Slater, the attorney general wants no further delay in the case, Kane said.

The defense and prosecution agreed to the DNA testing on Feb. 19, 2010, three months after Gary was scheduled to die of lethal injection.

Gary was hours away from execution Dec. 16, 2009, when the Georgia Supreme Court issued a stay and ordered a Superior Court judge here to consider DNA testing.

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

Gary was convicted of Thurmond’s murder, but not Dimenstein’s. Though then-District Attorney Bill 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 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 rape and beating of Miller, 64, 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.

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

With such evidence apparently favoring his client, Martin filed a motion July 9, 2012, seeking a new trial.

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