Update: Gary execution stopped by Georgia Supreme Court

In a 5-2 vote, the Supreme Court of Georgia today granted Carlton Gary’s motion for a stay of execution and ordered the Muscogee County Superior Court to conduct a hearing on his request for DNA testing.

The decision came down shortly after 3 p.m.

Gary, who was convicted and sentenced to death in 1986 for the rapes and strangulation murders of three elderly women in Columbus, was due to be executed tonight at 7 by lethal injection. Gary’s attorneys have claimed that DNA testing of hair, semen and fingernail scrapings found on his alleged victims was not available at the time of his conviction.

All justices concurred in today’s decision except Chief Justice Carol Hunstein and Presiding Justice George Carley, who dissented.

Columbus Mayor Jim Wetherington, the Columbus Police chief at the time of Gary's arrest. said he was disappointed.

"But the court has ruled," he said.

Bill Smith, the district attorney who led the prosecution team in 1986 and later became a Superior Court judge, said he would withhold comment until the court addresses the matter.

Columbus Police Chief Ricky Boren, Assistant Police Chief Charlie Rowe, Maj. Lem Miller, Sheriff John Darr, Sheriff’s Office Maj. Randy Robertson and District Attorney Julia Slater were in en route to Jackson before the stay was granted.

They left from the Columbus Public Safety building in two vehicles at 2 p.m. At that time, Boren acknowledged the possibility of a stay.

“We’re still waiting,” Boren said. “They have until 7 to place a stay.”

Jackson scene

The scene outside of the Georgia Diagnostic Prison in Jackson, Ga. was quiet around 3 p.m., moments before word of the stay reached the prison.

Officers in yellow vests stood at the brick entrance, stopping each car and checking ID. Nearby, another group of probation officers stood in a circle and talked.

No supporters or detractors of Stocking Strangler Carlton Gary were in the area.

News of the execution's stay had reached prison officials by 3:15 p.m. At 3:20 p.m., Joan Heath, public affairs director with the Georgia Department of Corrections, said witnesses to the execuction were contacted by the Office of the Commissioner about the stay of execution. Some of those witnesses, including law enforcement and family members of Carlton Gary's victims, left Columbus around 2 p.m. for Jackson, Ga.

Gary had been moved to a cell closer to the death chamber prior to the high court's order, Heath said.

"He'll go back to his cell, until we have further word from the court," she added.

Gary was scheduled to be executed at by lethal injection at 7 p.m. in the Georgia Diagnostic and Classification Prison in Jackson. Gary was sentenced to death in 1986 for the murder of three women in Columbus, Georgia.

Gary’s attorneys worked all day trying to get a stay.

"He was sad, couldn't sleep," said defense attorney Jack Martin, who represents Gary. "Could you imagine yourself in that situation? But now he's happy that he can get the testing done. It might turn out that we got the wrong person."

Court battle continues

When Gary's execution was only hours away, the volley of court motions between his defense attorneys and prosecutors continued before the Georgia Supreme Court.

Martin of Atlanta, filed a response to prosecutors’ arguing that the man convicted in three of Columbus’ seven rapes and stranglings of elderly women in the late 1970s is not entitled to a stay of execution to consider new evidence, because the evidence is not new.

"I hope the DA will cooperate with us," Martin said after he learned of the stay. "I don't know why the DA is so scared of this."

Martin wants the court to review evidence that he claims either was not available to the defense during Gary’s 1986 trial or was presented inaccurately, specifically:

-- Before DNA testing was available, semen found at the crime scenes was tested to see whether the rapist readily secreted blood-type markers in his other bodily fluids. The prosecution had a crime-lab technician say the perpetrator was either a “weak-secretor” or a “non-secretor.” Gary later was shown to be a “strong, normal secretor,” Martin says, yet the jury was led to believe this evidence did not exclude him as a suspect, and the defense was provided no funding for an expert to counter the prosecution’s witness.

-- A bite mark mold made from a wound on victim Janet Cofer’s left breast does not match Gary’s teeth, yet this evidence was never made available to the defense during Gary’s trial and did not turn up until 2005, when then-coroner James Dunnavant found it in a file cabinet in his office. The defense has a forensic odontologist who will testify that the bunched lower teeth shown on the mold don’t fit Gary, who has not had any dental work on those teeth since the stranglings.

-- Shoe prints found at some crime scenes were too small to match Gary’s shoe size, and defense attorneys did not know this until a former GBI agent who had been assigned to a strangler task force in the 1970s contacted them after Gary had been tried and convicted.

Martin’s response to prosecutors was filed as part of Gary’s appeal from Butts County Superior Court, which has jurisdiction over Georgia’s death-row prison in Jackson.

This story was originally published December 16, 2009 at 8:29 AM with the headline "Update: Gary execution stopped by Georgia Supreme Court."