Claiming the defense is trying to further delay the ongoing case of convicted Stocking Strangler Carlton Gary, prosecutors are opposing his attorneys’ motion to DNA-test evidence from a brutal rape that preceded the string of seven serial killings in 1977 and ’78.
After mixed results from DNA-testing stranglings evidence last year, Gary’s defense team wanted to test items police collected after the Sept. 11, 1977, rape and aggravated assault of Gertrude Miller, 64, who survived the attack. During Gary’s 1986 trial, Miller in court identified Gary as her attacker. She has died since then.
Her testimony was used to show Gary’s pattern of criminal conduct, but Gary was not charged in her case. He was convicted in three of the seven stranglings and sentenced to death.
Prosecutors say testing in Miller’s case is unlikely to establish Gary’s guilt or innocence as required by Georgia’s post-conviction DNA testing law, which prohibits seeking testing just to delay an execution.
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The motion filed Friday by District Attorney Julia Slater in part says, “it is apparent that such testing will not produce evidence which would create a ‘reasonable probability’ that defendant would be acquitted and would only result in further unnecessary delay in these proceedings.”
Defense attorneys knew evidence in the Miller case was available when they filed their first motion for DNA testing on Dec. 7, 2009, and when they negotiated for the limited DNA testing to which the prosecution agreed on Feb. 19, 2010, Slater wrote:
“In light of the prolonged procedural history of this case, the timing of the filing of this motion shows that it is clearly filed for the purpose of further delaying the resolution of defendant’s case.”
She notes also that the rape examination police requested from doctors treating Miller at St. Francis Hospital was not conducted until Sept. 13, 1977, two days after her assault. That lapse “casts considerable doubt on viability of any such evidence to establish the identity of her rapist,” Slater wrote.
Georgia law requires that a requested DNA test raise a reasonable probability the defendant would have been acquitted had the results been available at the time of his trial. A test from Miller’s case does not meet that standard, Slater argued, in a footnote stating: “The defendant’s conviction is not a house of cards, whereby if any of the many convictions against him are affected in some fashion, including the similar transactions upon which he was not convicted, his entire conviction and sentence must be overturned.”
Gary was to be executed in December 2009 when the Georgia Supreme Court sent the case back to Muscogee Superior Court for a hearing on DNA testing. The defense and prosecution last year agreed to DNA-test four pieces of evidence. The tests matched Gary to semen found Sept. 25, 1977, at the scene of 71-year-old Jean Dimenstein’s homicide. But DNA evidence from the Oct. 25, 1977, slaying of 69-year-old Martha Thurmond showed the semen police found there had to have come from someone else.
Gary was convicted in Thurmond’s case, but not Dimenstein’s.
He also was convicted in the rapes and stranglings of Florence Scheible, 89, of 1941 Dimon St., on Oct. 21, 1977; and of Kathleen Woodruff, 74, of 1811 Buena Vista Road, on Dec. 28, 1977.
The other cases were Ferne Jackson, 60, of 2505 17th St.; on Sept. 15, 1977; Mildred Borom, 78, of 1612 Forest Ave., on Feb. 12, 1978; and Janet Cofer, 61, of 3783 Steam Mill Road, on the April 20, 1978.
Prosecutors used evidence from other cases to show a pattern of conduct in the killings and in the attack on Miller, so the defense maintains 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.
In her Friday motion, Slater argued that taking this stance in the Miller case ignores all the other evidence against Gary, including his own admissions to police: “As opposed to the Jackson, Scheible, Thurmond, and Woodruff cases where defendant’s fingerprints were found, no such fingerprints were found in Ms. Miller’s residence.”
And unlike the Dimenstein, Scheible, Thurmond, Woodruff, Borum and Cofer cases, “where the defendant admitted his presence but stated he participated in the burglary and blamed the violence on another, he made no such statement regarding Ms. Miller,” Slater wrote. Thus the Miller case is not likely to affect Gary’s convictions.
The defense now has the option of responding to the prosecution by March 14, and then attorneys from both sides are to confer with Superior Court Judge Frank Jordan Jr. within 15 days.