Convicted “Stocking Strangler” Carlton Gary’s lead attorney sounded hopeful as he emerged Wednesday from a meeting with the Georgia Board of Pardons and Paroles, saying the members listened carefully and seemed to grasp the complexities of the case.
Atlanta attorney John “Jack” Martin had brought to the board a juror from Gary’s 1986 trial, Jack Pickel, who told the board he would not have voted to give Gary the death penalty had he seen the evidence available today, particularly a DNA test from the Sept. 11, 1977 assault on Gertrude Miller.
Prosecutors have maintained this rape Miller survived was a precursor to the seven serial killings that followed, and they had Miller identify Gary as her assailant during his trial.
A 2011 DNA test on clothing police collected at the crime scene yielded a profile that did not match Gary.
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One of the key points of Martin’s effort to get Gary either a new trial or new sentence is the argument that had even one juror heard the evidence now casting doubt on Gary’s guilt, Gary would not be facing the death penalty today, as the vote had to be unanimous.
Also addressing the board with Martin and Pickel were August “Bud” Siemon, Gary’s trial attorney, and Jeffrey Ertel, who handled Gary’s early appeals. Martin said they outlined the disadvantages they faced trying to defend Gary with little funding, and without the exculpatory evidence they say the prosecution hid from them.
The board heard from the defense Wednesday morning. The prosecution is to address the board Wednesday afternoon. The board’s decision is expected to be announced either Wednesday night or Thursday morning.
Gary is to be executed by lethal injection at 7 p.m. Thursday at the Georgia Diagnostic and Classification Prison in Jackson.
The board has the power to commute Gary’s sentence to life in prison, or stay his execution for 90 days. It last heard from Gary’s attorneys in 2009, when Gary was to be executed Dec. 16. It denied Gary clemency. The Georgia Supreme Court later stayed the execution and sent the case back to Muscogee Superior Court to consider DNA-testing any stranglings evidence deemed suitable.
That testing yield mixed results, as authorities said it matched Gary to the Sept. 24, 1977, rape and strangling of Jean Dimenstein, 71.
The defense had hoped a more conclusive test would come from semen found on the body of Martha Thurmond, found raped and strangled Oct. 25, 1977. But the Georgia Bureau of Investigation said it tainted and destroyed that evidence, leaving defense attorneys outraged.
Among those speaking out in protest of the impending execution is David Rose, the British author of “The Big Eddy Club,” a book that delves into the alleged injustices Gary suffered with an underfunded defense hampered by withheld evidence.
Contacted via email this week, Rose sent the Ledger-Enquirer this statement:
“If Carlton is executed, it would represent a barbaric perversion of the course of justice. There is a mountain of physical evidence that shows he did not commit these crimes. First and foremost, DNA testing demonstrates that he did not rape Gertrude Miller, who no one disputes was the strangler’s first victim. DNA testing of the semen swabbed from the body of Martha Thurmond should have demonstrated his innocence once and for all, yet this precious material was rendered useless at the GBI crime lab when an unknown person smeared fresh semen on the sample and the lab equipment. This was either deliberate sabotage, or negligence so flagrant that it beggars belief. Serology testing had already shown Carlton was not the source of the Thurmond sample. The DNA test would have confirmed this beyond doubt.
“The US Supreme Court and the 11th Circuit Appeals Court have been asked to stay his execution and review the case on these grounds. If they fail to do so, this should shock the conscience of all Americans. Executing Carlton Gary in these circumstances would amount to an act of judicial murder.”
Rose also has written a piece for The Daily Beast regarding Gary’s execution.
Martin said he not yet heard any news from the higher courts regarding Gary’s final appeals.