Citing 'clouds of doubt,' Carlton Gary defense renews call for execution stay, DNA testing

Carlton Gary’s attorney has renewed his request that evidence from the 1970s “Stocking Stranglings” be DNA-tested to see if they match the man convicted in three of the seven cases before he's executed next week.

In asking Muscogee Superior Court Judge Robert Johnston to reconsider denying his motion Monday seeking a stay of execution and DNA testing, Atlanta attorney Jack Martin again asked why prosecutors would not want to confirm that Gary is indeed the Columbus Stocking Strangler. He also listed evidence indicating Gary is not the strangler, evidence a jury did not see during Gary’s 1986 trial, but which his defense team uncovered later.

Martin said DNA tests could be done in 30 days, “hardly an extended delay in the scheduled execution,” and added: “After all these years, why rush an execution when there is available evidence which may be able to tell us once and for all whether the right man was convicted as the Columbus Stocking Strangler, or whether the actual perpetrator of these crimes may still be at large.”

Gary’s execution is scheduled for 7 p.m. Wednesday at the Diagnostic and Classification Prison in Jackson, Ga.

On Tuesday, District Attorney Julia Slater filed a response opposing Martin’s Monday motion for the stay and the testing. Slater wrote that Martin had failed to meet the standard state law sets for DNA testing, and that he was just trying to delay Gary’s execution. She also argued that the DNA testing would make little difference, as Gary’s conviction was based on other factors.

Martin in his motion for reconsideration made reference to her response, which said Gary would be guilty even if someone else left the semen found at some of the crime scenes:

“The state goes so far as to claim that the testing would be inconsequential even if ‘defendant’s hypothetical DNA testing showed that he did not personally commit rape,’ a remarkable concession. Does the state, after prosecuting the defendant as the one and only Columbus Stocking Strangler who cruelly raped and strangled to death his victims, now allow for the possibility that someone else committed the rape/murders and the defendant’s guilt is only as some sort of ‘accomplice’?”

Martin also challenged the validity of the evidence used to convict Gary, and cited other evidence that would have excluded him as the killer.

A woman who in September 1977 survived an attack by an intruder believed to be the strangler identified Gary as her assailant after she saw him on TV in 1984, when he was arrested. Martin said that when assaulted, the woman had been sleeping with the lights off, so she could not have seen him clearly, and she later told police that “she would not be able to identify the subject and she was not able to describe him.”

Fingerprint evidence that placed Gary at four of the stranglings is questionable, Martin wrote. During Gary’s appeals, a former FBI expert said the fingerprints lacked sufficient matches and were “borderline” in identifying a suspect; no photographs showed where at the crime scenes they were found; and reportedly some were in “odd locations.” For example, prints found on a window screen “could have only been left if the person removing the screen had crossed his arms while lifting the screen, an implausible circumstance,” Martin wrote.

Before DNA testing was available, prosecutors used testimony from a crime lab technician who said the strangler left semen matching Gary’s common blood Type O, but that the fluids came from “a weak secretor or non-secretor,” someone who doesn’t readily excrete blood-type markers in his other bodily fluids. Gary after his arrest was shown to be a “strong secretor,” Martin said, so that evidence doesn’t match.

The prosecution claimed Gary’s secretion status may have changed over time. “These claims are contrary to the consensus of scientific authority and all published research,” Martin wrote. “They are simply false.”

Among the evidence indicating Gary could not be the strangler is a bite mark found on the breast of victim Janet Cofer. A dental expert compared a mold made from that mark to Gary’s teeth, and in federal court testified that “based upon a crooked lower tooth on the bite mark mold, when compared to an examination of the lower teeth of the defendant, on which lower teeth he had never had intervening dental work, the defendant was in his opinion more likely than not not the person who left the bite mark on Ms. Cofer,” Martin wrote.

Martin also cited a shoe print found on an air-conditioner outside the home of Ruth Schwob, who survived an attack on Feb. 11, 1978. The intruder was believed to have stood upon that unit to climb into Schwob’s kitchen window. The print came from a size 9 tennis shoe. Gary wears a size 13½, Martin wrote.

A similar size shoe print was found on a bath mat in a hotel room in Albany, N.Y., where a woman named Nellie Farmer was raped and strangled in April 1970. Gary was implicated in that case, but blamed the slaying on another man who was prosecuted and acquitted. Prosecutors in the stranglings used the Farmer case to show a pattern of behavior, partly because Columbus investigators said Gary blamed the stranglings on another man.

As for claims that the defense now is seeking DNA tests just to delay Gary’s execution, Martin said the U.S. Supreme Court rejected Gary’s third appeal Thanksgiving weekend, and that Martin and Aimee Maxwell of the Georgia Innocence Project went to the Columbus Police Department to examine physical evidence on Dec. 4, as soon as that could be arranged. Having found samples suitable for DNA testing, he filed a motion requesting that on Dec. 7, as soon as he would visit Georgia’s death row to get Gary’s assent. So he acted as quickly as possible, under the circumstances, he said.

Although he had seen that same evidence in 2001, he needed Maxwell’s advice on whether it was suitable for DNA tests, he said.

He concluded: “Clouds of doubt have lingered over this case for decades. Both the defendant and the victims deserve a clear and definitive answer as to whether Carlton Gary was the Columbus Stocking Strangler and is deserving of execution. The state’s objections are hyper-technical and miss the point. Our system of justice is designed to punish the guilty and exonerate the innocent. We have available DNA evidence which can do just that.”

This story was originally published December 10, 2009 at 11:56 AM with the headline "Citing 'clouds of doubt,' Carlton Gary defense renews call for execution stay, DNA testing."