Defense attorneys for convicted Stocking Strangler Carlton Gary want to DNA-test evidence from a brutal 1977 rape that preceded the string of seven serial killings which began that September and continued into April 1978.
Gary was never charged in the Sept. 11, 1977, rape and aggravated assault of Gertrude Miller, 64, who survived the attack that investigators later decided was a precursor of the homicides to come. Miller’s testimony during Gary’s trial in 1986 became crucial to his prosecution, because Miller in court identified him as her attacker.
Seeking evidence from that case adds a new twist to the chain of custody issues surrounding DNA testing: The stranglings evidence tested last year had been stored in the Columbus Police Department. The physicians who examined Miller have told attorneys evidence from her case may be stored at Columbus’ St. Francis Hospital. That’s where she was treated and where detectives requested a “rape examination,” which Dr. Andy Wasden was asked to conduct. Wasden’s later report to police said he obtained “vaginal secretions” from Miller.
In their Tuesday motion for further DNA testing, Gary’s defense team writes: “Counsel has recently reviewed the evidence maintained by the property room of the Columbus Police Department and found none of the evidence or other materials from the rape examination conducted at the St. Francis Hospital. Accordingly, in order to obtain this evidence, the defendant will need the court to order the St. Francis Hospital, by way of subpoena or otherwise, to produce any and all records and biological evidence including records regarding the examination of vaginal secretions of Ms. Miller.”
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If that evidence is unavailable, then the defense requests that other items investigators collected at Miller’s 2703 Hood Street home be considered for testing. Those are stored at the police department, and include a nightgown, an undergarment, a white slip, and the clothing Miller wore to the hospital, “all of which appear to be stained and some of which have cut-outs indicating testing by the GBI Crime Lab,” the defense wrote.
Gary’s attorneys also seek DNA testing on evidence from the last of the seven serial killings, the April 20, 1978, rape and strangling of Janet Cofer, 61, who lived at 3783 Steam Mill Road. The defense found the police department still has scrapings collected from underneath Cofer’s fingernails.
“While not necessarily identified with the perpetrator who raped and murdered Ms. Cofer, one would expect that during the attack upon she would have resisted her perpetrator with her hands and material identified with her perpetrator would be found under her fingernails,” attorneys wrote.
The Cofer case has been spotlighted before in Gary’s appeals because of a deep bite mark that was on the victim’s left breast. A cast of that mark was created to preserve the tooth pattern, but it never came up in Gary’s trial, and defense attorneys later alleged the prosecution deliberately withheld that evidence because the cast didn’t match Gary’s teeth.
During Gary’s federal appeals, the defense repeatedly sought the cast, which could not be found. Finally, in 2005, it turned up in a paper bag in an old filing cabinet in the Muscogee coroner’s office.
If the cast doesn’t fit Gary’s teeth, then a DNA test on fingernail scrapings could confirm he wasn’t the intruder who killed Cofer, his attorneys say.
Gary was convicted in three of the seven homicides, the rapes and stranglings of Florence Scheible, 89, of 1941 Dimon St., on Oct. 21, 1977; of Martha Thurmond, 69, of 2614 Marion St., on Oct. 25, 1977; and of Kathleen Woodruff, 74, of 1811 Buena Vista Road, on Dec. 28, 1977.
Besides Cofer, the others were Ferne Jackson, 60, of 2505 17th St.; on Sept. 15, 1977; Jean Dimenstein, 71, of 3027 21st St., on Sept. 24, 1977; and Mildred Borom, 78, of 1612 Forest Ave., on Feb. 12, 1978.
Prosecutors used evidence from other cases to show a pattern of conduct in the killings and in the attack on Miller, so any evidence excluding him in any of those cases could cast doubt on his guilt, and result either in his getting a new trial or a sentence other than death.
His defense team already got a boost from DNA testing last year that showed someone else left the semen police found in vaginal washings from Thurmond’s body. Evidence from the slaying of Dimenstein, however, is reported to have matched Gary’s DNA profile.
Those mixed results prompted attorneys on both sides to forego another court hearing and instead file motions for additional DNA testing, with the defense filing first.
The prosecution now may respond to the defense by Feb. 21. After that, defense attorneys have the option of responding to the prosecution by March 14, and then both sides are to confer with Muscogee Superior Court Judge Frank Jordan Jr. within 15 days.
Gary remains in Georgia’s death-row prison in Jackson. He was just hours away from lethal injection Dec. 16, 2009, when the state Supreme Court issued a stay and ordered a Muscogee Superior Court judge to hold a hearing on DNA testing. On Feb. 19, 2010, the defense and prosecution reached an agreement on last year’s testing.
THE MILLER CASE
A friend joining Miller for church found Miller bloody and dazed about 10:20 a.m. that Sunday, Sept. 11, 1977. Neighbors called for an ambulance. The medics responding alerted police and took Miller to St. Francis, where she was admitted in critical condition and reported to be “delirious.”
Miller initially told police she would not be able to identify her assailant. But when detectives interviewed her at length on Sept. 15, she gave a detailed account of what happened, saying she went to bed about midnight and awoke later to find a man had come in through her bedroom window. He hit her behind the left ear with a board about 3 feet long and 3 to 4 inches wide, bound her with stockings he’d taken from her dresser and raped her. The intruder also turned on a bedside lamp, and “she was able to see his face clearly,” police reported then, adding, “Miller further stated that she has never seen the subject before but is sure that she can identify him if she saw him again.”
She described him as black and clean-shaven with a “neatly cut” afro hairstyle 1 to 1½ inches long. He was about 6 feet tall and wearing a T-shirt with three or four horizontal stripes, each about an inch wide in a pattern showing different kinds of fruit.
Also in the police file on Miller’s case was a letter from Wasden dated Sept. 13, 1977. It read in part, “The vaginal secretions obtained revealed no motile sperm.”
Miller has died since Gary’s 1986 trial.