UPDATE: Judge rejects attorney general's motion he recuse himself from Carlton Gary case

tchitwood@ledger-enquirer.comNovember 22, 2013 

UPDATE: The Superior Court judge set to hear convicted "Stocking Strangler" Carlton Gary's motion for a new trial Dec. 3 has rejected the Georgia Attorney General's effort to have him recuse himself from the case.

The state attorney filed a motion Monday saying Judge Frank Jordan Jr. should leave the case 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.

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. Also the book’s display in Jordan’s office also creates the impression he is not impartial, the attorney general said.

In denying the attorney general's motion, Jordan wrote Thursday that it was not filed in a timely manner and is based on hearsay.

Senior Assistant Attorney General Sabrina Graham appended an affidavit to the recusal motion stating 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.

Wrote 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."

That someone else told Graham the book was in Jordan's library is hearsay, as Graham did not see the book there herself, the judge wrote: "While the affiant states that the affidavit is made upon her personal knowledge, the grounds for recusal are based entirely upon hearsay. Therefore, the affidavit is legally insufficient and an improper basis for recusal."

Also the attorney general waited too long to try to kick him off the case, Jordan wrote.

Referring to the late Judge Robert Johnston, who previously presided over Gary's case, Jordan wrote of the recusal motion: "The motion was filed over three years after this case was reassigned from Judge Johnston and the attorney general's office has been privy to these proceedings for the entirety of this court's involvement. Therefore, the motion is untimely."

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