UPDATE: Gary's defense cites evidence it says casts doubt on guilty verdict

Cites DNA, shoe prints, bite mold, victim's statement

tchitwood@ledger-enquirer.comFebruary 24, 2014 

For hours Monday attorneys sparred over evidence that convicted “Stocking Strangler” Carlton Gary’s defense team claims does not match the man found guilty in three of the seven serial killings of 1977 and ’78.

According to the defense, that evidence includes crime-scene footprints too small to match Gary’s shoe size, a DNA test yielding a profile that didn’t match Gary to a 1977 rape blamed on the strangler, and early evidence testing which showed that unlike Gary, the strangler was a “non-secretor” whose bodily fluids contained little of a chemical marker evidencing his blood type.

Gary was found to be a strong type-O secretor.

The first defense witnesses were attorney August “Bud” Siemon, who represented Gary during his 1986 trial, and attorney Jeff Ertel, who represented him in his early appeals. Each said Gary’s defense was not given crucial evidence that would have cast doubt on Gary’s guilt.

Among that evidence was a statement Gertrude Miller, 64, made to police after she was brutally beaten and raped Sept. 11, 1977, in her 2703 Hood St. home, an attack authorities later believed was a precursor to the stranglings.

Miller, who survived the attack, identified Gary as the rapist during his trial. But in her initial statement to police, she said it was too dark in her bedroom to see the intruder.

Siemon said that evidence would have cast doubt on Miller’s court testimony, had it been available to him.

The Miller case also prompted a spirited exchange between Gary’s lead defense counsel, Atlanta attorney Jack Martin, and Senior Assistant District Attorney Don Kelly. A bloody nightgown police found at the crime scene later was tested for DNA evidence, yielding a profile that didn’t match Gary.

Prosecutors have argued that test is of little value because the defense cannot establish Miller was wearing the gown when she was attacked. Kelly objected vociferously when Martin said Miller was wearing the gown when she was assaulted.

Kelly said the gown was in a pile of fabrics found by Miller’s bed, and police bagged it all up. In all they took 13 items of evidence out of Miller’s house, Kelly said.

Martin argued that the gown had blood and sperm on it, and the only logical conclusion was that Miller wore it to bed, before an intruder beat and raped her. Sarah Shields, a senior DNA analyst for the Bode Technology Group of Lorton, Va., where the test was conducted, said she saw no individual sperm cells in the sample before it was tested, but she assumed sperm was there because the test produced a profile.

The defense team’s DNA expert, Greg Hampikian of Boise State University, criticized the Georgia Bureau of Investigation laboratory that tainted another DNA test with a laboratory control sample used to test equipment.

That evidence came from the Oct. 25, 1977, rape and strangling of Martha Thurmond, 69, of 2614 Marion St. The GBI initially reported its test produced a profile that did not match Gary, but later the agency said the test was wrong, because the sample was contaminated in the laboratory.

Hampikian said the GBI explanation made no sense, because the technician conducting the test never used the control sample.

The GBI twice sent the control sample as suspect’s DNA to a national DNA database, neglecting to check its own laboratory records, which would have shown the sample should have been excluded, Hampikian said.

“That’s phenomenal error,” he said. He said one issue was lab workers using alcohol to sterilize equipment. Alcohol doesn’t break down DNA, he said, it preserves DNA. The gear should have been cleaned with bleach, he said.

While conducting the test, the lab used up the Thurmond evidence, so it can’t be tested again, he said.

Under Kelly’s cross-examination, Hampikian acknowledged he found no problems with a DNA test that matched Gary to evidence in the Sept. 24, 1977, rape and strangling of Jean Dimenstein, 71, of 3027 21st St. The road later was renamed Cross Country Hill.

But the issues at the GBI lab don’t instill much confidence in its results, Hampikian said: “I think they’re going to find more problems.”

Defense witness Jim Covington, a retired GBI agent who in 1978 served on a strangler task force, testified he found a shoe print too small to match Gary on an air-conditioner outside the 1800 Carter Ave. home of Ruth Schwob, 71, who fought off an intruder trying to strangle her on Feb. 11, 1978. Her assailant had stood on the air-conditioner to climb in through her kitchen window.

Though the shoe size was smaller than Gary’s size 13, prosecutors said Gary after his arrest told investigators he wore shoes sized 9 to 11 to confuse police probing the stranglings.

Another mismatch turned up in the first strangling in which Gary was implicated while he lived in New York. On April 14, 1970, Nellie Farmer, 85, was raped and strangled in the Wellington Hotel in Albany, N.Y. Police there said they found Gary’s fingerprint on a trunk in the victim’s room.

During Gary’s Columbus trial, prosecutors used that case to illustrate a pattern of criminal conduct. But defense attorneys were not told Albany investigators also found a footprint in Farmer’s bathroom where the killer apparently washed himself. The shoe print was about a size 9 or 10.

Covington testified that though he for months was in charge of the strangler task force, he never heard investigators had found any usable fingerprints. Gary was convicted partly on evidence his fingerprints were found at strangling scenes.

Georgia Assistant Attorney General Sabrina Graham, who’s part of the prosecution team, had Covington view Columbus police reports showing investigators found latent fingerprints at these stranglings:

• Sept. 15, 1977, Ferne Jackson, 60, of 2505 17th St.

• Oct. 25, 1977, Martha Thurmond, 69, of 2614 Marion St.

• Oct. 21, 1977, Florence Scheible, 89, of 1941 Dimon St.

• Dec. 28, 1977, Kathleen Woodruff, 74, of 1811 Buena Vista Road.

Gary was convicted of killing Jackson, Scheible and Woodruff, though prosecutors maintain the same perpetrator committed all seven stranglings.

Martin pointed out that though police claimed to have found Gary’s prints at crime scenes, they did not take photos to show where the prints were located, though that’s standard procedure in documenting evidence.

Martin told Judge Frank Jordan Jr. that today he will introduce evidence of a bite-mark mold made from impressions found on victim Janet Cofer’s breast. He said the mold doesn’t match Gary.

Found raped and strangled April 20, 1978, in her 3783 Steam Mill Road home, Cofer, 61, was the last “Stocking Stranglings” victim.

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