Will convicted ‘Stocking Strangler’ Carlton Gary get a new trial?

Columbus now waits to see whether a judge will grant convicted “Stocking Strangler” Carlton Gary a new trial in the seven serial killings of older women that terrorized the city in the late 1970s.

Muscogee Superior Court Judge Frank Jordan Jr. heard two days of testimony and arguments ending at 4:20 p.m. Friday, as defense attorneys and prosecutors debated not only whether evidence casting doubt on Gary’s guilt was valid, but also “newly discovered.”

Gary’s extraordinary motion for a new trial by law must be based on evidence that came to light after his 1986 trial, and that evidence cannot be “new” just because defense attorneys failed to exercise “due diligence” in discovering it earlier.

Such standards are based on the Georgia Supreme Court’s 1980 ruling in Timberlake v. State, in which the justices set six criteria for evidence warranting a new trial.

Besides requiring the evidence be new and not overlooked by defense neglect, the justices said it must be so remarkable it likely would have affected the verdict; it cannot be merely “cumulative,” or only add to or repeat evidence presented at trial; it cannot just impeach the credibility of a trial witness; and if based on a witness’ testimony, that witness’ affidavit must be produced or its absence explained.

The evidence

Among the items evidence attorneys discussed this week were:

• A DNA test of clothing belonging to Gertrude Miller, 64, who survived being beaten and raped Sept. 11, 1977, in her 2703 Hood St. home. Police claim she was Gary’s first victim, and she identified him as her rapist during his 1986 trial. The defense maintains she was mistaken, and argues DNA tests of garments found in her bedroom exclude Gary as a suspect.
• A sketch investigator Herman Boone drew based on descriptions Miller gave while under hypnosis on Oct. 29, 1977. The sketch does not look like Gary.
• Crime-scene evidence showing the strangler was a “nonsecretor,” meaning he was among 20 percent of the population that doesn’t secrete blood-type markers in bodily fluids. Gary is a “strong secretor” of blood Type O markers, the defense says.
• A bite mark found on strangling victim Janet Cofer’s breast. Investigators made a mold from the bite, and it showed the biter had a rotated lower tooth. Gary does not. He had dental work on his upper jaw while in prison, but not his lower, the defense says.
• A shoe print found on an air-conditioner outside surviving victim Ruth Schwob’s home, where the intruder apparently stood on the unit to climb into Schwob’s window before assaulting her. The print was a size 9½ and Gary wears a size 13½.
• Fingerprints found at strangling scenes. The defense claims the fingerprint evidence is weak because police had no set standard for matching prints, and failed to photograph prints to show where they were found.
• A confession Gary gave police the night he was arrested in May 1984. It was not recorded. Detectives said Gary pointed out victims’ homes as they drove him around Columbus, and he noted details of crimes that only the perpetrator would know. The defense stressed police said the same thing about Jerome Livas, an earlier stranglings suspect whose confession proved to be false.
• A DNA test matching Gary to the strangling of Jean Dimenstein. The prosecution says it confirms that Gary is the strangler. The defense says the Dimenstein semen evidence was “a messy sample that was a mixture.” Prosecutors said it came from vaginal washings and is more reliable than the Miller sample.

The strangler cases

To keep the cases in chronological order, here are the seven strangling plus two assaults victims survived. Gary was convicted in three of the stranglings, but prosecutors maintain he committed all the attacks, and at trial used evidence from each to show a pattern of criminal conduct:

• On Sept. 11, 1977, Gertrude Miller was raped and beaten.
• On Sept. 16, 1977, Mary Willis “Fern” Jackson, 59, of 2505 17th St., is found brutally beaten, raped and strangled with a stocking and sash. Gary’s right palm print was found on a dining room door frame.
• On Sept. 24, 1977, Jean Dimenstein, 71, is found raped and strangled with a stocking in her home that then had the address 3027 21st St. (the street has since been renamed).
• On Oct. 21, 1977, Florence Scheible, 89, is found raped and strangled with a stocking in her 1941 Dimon St. home, which today has a different address. Gary's right thumbprint was found on a door frame leading into Scheible's bedroom.
• On Oct. 25, 1977, Martha Thurmond, 69, is found raped and strangled with a stocking in her 2614 Marion St. home. Gary's right middle fingerprint is found on the frame of a rear bathroom window.
• On Dec. 28, 1977, Kathleen Woodruff, 74, is found raped and strangled in her 1811 Buena Vista Road home, which later was demolished during an Aflac expansion. Gary's right little fingerprint is found on the aluminum window screen where the intruder entered, and his left palm print is found on the windowsill just inside.
• On Feb. 11, 1978, Ruth Schwob, 74, of 1800 Carter Ave., is nearly strangled to death by an intruder she fights off, pressing a panic alarm by her bed.
• On Feb. 12, 1978, Mildred Borom, 78, 1612 Forest Ave., about two blocks from Schwob’s home on the west side of Wildwood Park, is found raped and strangled with a cord cut from window blinds.
• On April 20, 1978, Janet Cofer, 61, of 3783 Steam Mill Road, is found raped and strangled with a stocking.

Gary’s trial began Aug. 11, 1986. The following Aug. 26, the jury found him guilty of killing Scheible, Thurmond and Woodruff. Jurors sentenced him to death the next day.

The DNA testing

Georgia did not use DNA testing in criminal trials until 1990. Gary’s attorneys did not request DNA testing on appeal until Gary was about to die by lethal injection on Dec. 16, 2009, when the state Supreme Court issued a stay and sent the case back to Muscogee County for hearings on DNA testing.

In February 2010, the defense and prosecution agreed to test four items of evidence, two from the Thurmond case and one each from Woodruff and Dimenstein. The Woodruff test proved inconclusive.

Results of the Thurmond test excluded Gary, at first, but then authorities announced the test had been tainted by a “control sample,” a known DNA profile used to test lab equipment. They said the test could not be repeated because the sample was used up in the flawed test.

The defense then sought DNA testing on Miller’s clothing. That test excluded Gary.

So the court was left with conflicting results: One DNA profile that matched Gary to Dimenstein’s murder; another that excluded him from Miller’s rape.

District Attorney Julia Slater dismisses the latter on the claim the garments tested were only clothes police gathered from Miller’s bedroom, with no assurance she actually wore them the night she was raped, so the origin of the DNA found on them can’t be authenticated. Miller has died since Gary’s 1986 trial.

Gary’s lead defense attorney Jack Martin discounts prosecutors’ speculation that Miller perhaps had a lover at the time, or the clothes tested were unwashed after a previous sexual encounter, leaving the semen samples. No evidence shows Miller was romantically involved then, he said.

Martin repeatedly emphasized the Georgia Bureau of Investigation’s befouling the Thurmond test, for which the semen sample had appeared the most promising. The state that destroyed Gary’s best chance of overturning the verdict should not be allowed to put him to death, Martin said.

The prosecution

Citing the 2012 Georgia Supreme Court precedent Drane v. State, Slater noted the court then ruled evidence for a new trial “based on newly discovered evidence require a defendant to act without delay in bringing such a motion.”

She argued Gary’s defense lawyers had decades to pursue the new evidence they want Jordan to consider, but chose not to, failing the Timberlake “due diligence” standard and Drane’s requirement that new evidence immediately be brought to the court’s attention.

She argued also that any purported new evidence can’t be new if another court already considered it. “This case has been extensively litigated,” she said, pointing to Gary’s appeals to state and federal courts, which considered issues such as the serology evidence, the bite-mark mold, the fingerprints and the unrecorded confession.

Gary’s attorneys learned of the Schwob shoe print three years before they sought DNA testing and six years before they sought a new trial, she said. They knew evidence suitable for DNA testing was available as early as 2001, she said.

The Miller sketch came to the court’s attention last year, when it was found in a deceased investigator’s briefcase, but it serves only to impeach Miller’s credibility, failing another Timberlake standard, she said.

The defense

Martin countered that Jordan’s primary duty is to compare the evidence presented at trial to the new evidence the defense has brought up to determine whether the verdict might have been different.

Defense attorneys could not have sought DNA testing earlier because the state at first told them all the biological evidence had been destroyed, and no law was in place to authorize a request for DNA tests, he said.

Gary’s trial attorney knew nothing of the Cofer bite-mark mold because prosecutors withheld that information, Martin said.

The trial attorney had heard about the Miller sketch and questioned her about it on the stand, relying on a transcript of the hypnosis session. But prosecutors never gave him a copy of the sketch, despite repeated requests, Martin said.

He said the case against Gary in 1986 rested upon three pillars: the fingerprints, the unrecorded confession, and Miller’s testimony identifying him as her rapist. None of those now remain unshaken, he said.

Jordan concluded the court session by saying he would take the evidence “under advisement” for a later ruling.

Attorneys said the judge can grant or deny Gary a new trial, or order a new sentencing trial at which a new jury would review the case to decide whether Gary should be executed.

Any decision Jordan makes may be appealed to the Georgia Supreme Court.

Today Gary is 66 years old. Come September, the first Stocking Stranglings will reach their 40th anniversary.

This story was originally published January 13, 2017 at 7:49 PM with the headline "Will convicted ‘Stocking Strangler’ Carlton Gary get a new trial?."