Carlton Gary is not entitled to a stay of execution to DNA-test physical evidence from the 1970s "Stocking Stranglings" to determine whether it matches Gary's DNA, Muscogee Superior Court Judge Robert Johnston ruled today.
In his decision, Johnston agreed with the points District Attorney Julia Slater raised in opposing Gary attorney Jack Martin's Monday motions seeking the stay and the tests.
Slater wrote Tuesday that Martin’s filings did not meet the standards of the state law on which he based his request for DNA testing, and that in 2001 Martin saw the evidence he now wants tested and could have requested the testing then.
The defense attorney filed his motion after the U.S. Supreme Court rejected Gary’s third appeal and the inmate’s execution was scheduled, so Martin is trying to delay the execution, which the Georgia law on DNA testing specifically prohibits, Slater said.
Because of these factors, Martin’s motions should be denied without a hearing, Slater contended, noting that the Georgia law authorizing DNA testing requires a defendant to show that the tests would raise a “reasonable probability” that he would have been acquitted “if the results of the DNA testing had been available at the time of conviction, in light of all the evidence in the case.”
Gary's execution is set for 7 p.m. Dec. 16.
Johnston agreed with Slater, writing today that "based on the fact that defense counsel viewed the material at issue in 2001 and failed to request a DNA test until four days after the filing of an execution order in this case ... this court specifically finds that this motion was filed for the purposes of delay."
He wrote also that he had reviewed the evidence in the case. "In light of this evidence, this court specifically finds that this defendant has failed to establish ... that there is a 'reasonable probability' that the DNA testing proposed by defendant would have led to defendant's acquittal at his trial."
Johnston concluded: "This court also declines to allow defendant a further delay in his execution, as defendant has had 23 years in which his convictions and death sentences have been reviewed by various state and federal courts. Therefore the defendant's motion for a stay of execution is hereby denied."
In her Tuesday response to Martin, Slater noted that Gary’s fingerprints matched those found at four of the seven Stocking Stranglings — those of Florence Scheible, 89, on Oct. 21, 1977; Martha Thurmond, 69, on Oct. 25, 1977; Kathleen Woodruff, 74, on Dec. 28, 1977; and Fern Jackson, 60, on Sept. 15, 1977.
Slater also cited investigators’ reports that after his arrest on May 3, 1984, Gary admitted being at some of the crime scenes and knew specific details about victims’ homes.
She also cited the testimony of a woman who survived an attack and years later identified Gary as her assailant.
To support her claim that Martin is trying to only delay Gary’s execution, Slater noted that courts already have dealt with defense claims that new evidence either could exonerate Gary or at least cast doubt on his guilt.
“It is clear that the only purpose of the instant free-standing motion, filed without the pendency of any proceeding in this court, can only be for purposes of delay,” Slater wrote, noting that police department records show Martin already had access to the evidence he now wants tested for DNA.
“As defendant’s counsel was given access to this same material in the Columbus Police Department in 2001, he has failed to explain why he did not seek DNA testing from this court or file an extraordinary motion for new trial at that time,” Slater said.
Martin Tuesday night called Slater’s response “bizarre.”
“She largely raises very technical complaints, all of which we think are erroneous and mistaken,” he said. “It causes us to pause and ask the question, ‘Why is the state so scared of DNA testing?’ You would think they would be as interested in finding out whether he’s the perpetrator as anyone else.”
As for his seeing the evidence in 2001, Martin said the defense had requested DNA testing then, while appealing to the federal courts and hoping they would agree. “They didn’t, so now’s the time to do this,” he said.
He was unsure then whether the evidence was suitable for testing, but when Aimee Maxwell of the Georgia Innocence Project examined it on Dec. 4, she confirmed that it was, he said.
“Until I had Aimee look at it, I didn’t know whether the stuff really could be used,” he said. “And she said this is the type of stuff that’s been used in all these exonerations.”
The Innocence Project advocates DNA testing to determine whether defendants have been wrongly convicted.
Gary in 1986 was convicted of murder in three cases — those of Scheible, Thurmond and Woodruff. He was implicated in other stranglings to show a pattern of behavior, as the same killer is believed to have committed all seven.
Gary’s defense team may request a stay from the state Board of Pardons and Paroles on Monday, when a hearing before the board is set for 9 a.m. in Atlanta.