Prosecutors: ‘Overwhelming evidence’ shows Ga. Supreme Court should reject Carlton Gary appeal

Cherry-picking a few questionable clues that cast doubt on Carlton Gary’s guilt does not outweigh the overwhelming evidence proving he’s the ritual serial killer that came to be known as the “Stocking Strangler,” prosecutors argue in their response to Gary’s Nov. 1 appeal to the Georgia Supreme Court.

That evidence comes not just from the seven rapes and stranglings of older Columbus women in 1977 and ’78, along with two assaults here that victims survived, but from two earlier cases in New York – all with the same method of operation, the state wrote in opposing Gary’s motion for either a new trial or new sentencing.

“Defendant did not present a single claim during his extraordinary motion for a new trial proceeding that in any way diminished the credibility of the extensive evidence of his guilt,” the prosecution said in its 80-page response filed Monday.

The defense is appealing Muscogee Superior Court Judge Frank Jordan Jr.’s Sept. 1 ruling denying Gary’s motion for a new trial or sentencing. Jordan decided the exculpatory evidence Gary’s defense attorneys cite would not have altered the outcome of his 1986 trial, when he was convicted in three of the seven Columbus stranglings and sentenced to death.

The state Supreme Court has 30 days to decide whether to review Gary’s appeal, attorneys said. If court rejects it, his attorneys may appeal to the U.S. Supreme Court, but it previously has refused to hear the case.

Like all condemned inmates, Gary gets a last review before the Georgia Board of Pardons & Paroles, which refused to commute his death sentence in 2009.

In 2009, when Gary was hours away from lethal injection, the state Supreme Court gave him a last-minute stay, and sent the case back to Muscogee Superior Court, instructing it to determine whether any evidence from the stranglings was suitable for DNA testing.

The DNA testing produced mixed results, matching Gary to one strangling but not to an earlier assault prosecutors claimed he committed.

With the testing concluded, the high court could decide what it sought in Gary’s 2009 remand has been satisfied, and deny the appeal. That would allow Jordan to issue a death warrant giving the state Department of Corrections a week in which to execute Gary by lethal injection.

But the state Supreme Court also could decide to send the case back again, to Judge Jordan’s court, with instructions to reconsider some aspect of his ruling.

That further could postpone the resolution of a case that repeatedly has been delayed over the decades: Jordan is to retire at the end of the year. If remanded to Muscogee County, the case will remain in his court. If it still is unresolved by the time he leaves, his successor, appointed by the governor, will take over.

The evidentiary pattern

Here in chronological order is a review of the cases in which Gary either was convicted or implicated. Though he was not charged in them all, prosecutors in 1986 used evidence from other crimes to illustrate Gary’s method of operation.

Though Gary grew up in Columbus, he later moved to Florida and then to New York, where this pattern emerged:

▪ On April 14, 1970, Nellie Farmer, 85, was raped and strangled in her home in the Wellington Hotel in Albany, N.Y. Her body was left covered. Police found Gary’s fingerprint at the scene. Gary claimed another man killed Farmer, and was convicted only of robbery.

The defense says a footprint found at the scene did not match Gary, who wears a size 13½. The footprint was size 8½ or 9. The prosecution wrote that “this lone footprint does nothing to diminish the enormous body of evidence showing defendant to be guilty of the crimes he committed in Columbus.”

▪ On Jan. 2, 1977, Jean Frost, 55, was raped and nearly choked to death in her home in Syracuse, N.Y. Police caught Gary with a watch from Frost’s home two days later. He again blamed another man. He was charged with possessing stolen property, resisting arrest, perjury and assault. He pleaded guilty to possessing stolen property and was sentenced to a year in the Onondaga Penitentiary.

▪ On Aug. 22, 1977, Gary escaped from the Syracuse prison and moved back to Columbus, to a home on Fisk Avenue.

▪ On Sept. 11, 1977, Gertrude Miller, 64, was beaten with a board and raped in her 2703 Hood St. home, about two blocks from Fisk Avenue. Her assailant left behind knotted stockings he took from her dresser. Miller identified Gary as her rapist during his 1986 trial.

The DNA testing conducted after Gary’s stay of execution showed Gary was not the source of semen found on Miller’s gown. The defense says this proves Miller’s identification was mistaken.

Prosecutors counter that the defense can’t prove Miller was wearing the gown when she was assaulted.

▪ On Sept. 16, 1977, Mary Willis “Fern” Jackson, 59, of 2505 17th St., was found brutally beaten, raped and strangled with a stocking and sash. Her body was left covered. Her stolen car was found on Benner Avenue near Fisk Avenue. Police matched Gary’s fingerprint to the scene.

The defense argues police lacked sufficient “points of comparison” to declare the print a match. The prosecution replies that the Jackson match was based on nine points of comparison, which were enough.

▪ On Sept. 24, 1977, Jean Dimenstein, 71, was found raped and strangled with a stocking in her home that had the address 3027 21st St. The street later was renamed for the nearby Cross Country shopping center. Dimensteins’s body was left covered with sheets and a pillow.

DNA testing during Gary’s appeal matched his profile to evidence derived from Dimenstein’s vaginal washings, adding to evidence of his guilt, the prosecution notes.

▪ On Oct. 21, 1977, Florence Scheible, 89, was found raped and strangled with a stocking in her 1941 Dimon St. home, which today has a different address. Her body was left covered. Gary’s right thumbprint was found on a door frame leading into Scheible’s bedroom.

Again the defense says the fingerprint evidence is inadequate, and the prosecution maintains it is.

▪ On Oct. 25, 1977, Martha Thurmond, 70, was found raped and strangled with a stocking in her 2614 Marion St. home. Her body was covered by a pillow, blankets and sheets. Gary’s fingerprint was found on the frame of a rear bedroom window.

Evidence from Thurmond’s rape was DNA-tested at the Georgia Bureau of Investigation crime lab, and at first found not to match Gary. But authorities later announced the sample had been tainted by a known DNA profile used to test lab equipment.

During Gary’s 1986 trial, prosecutors used evidence from the Scheible and Thurmond cases to show the strangler was a weak or non-secretor of blood-type markers in his other bodily fluids such as sweat, tears and semen. Non-secretors are only 20 percent of the population.

A prosecution expert testified that he could not exclude Gary as the strangler, based on this evidence, though testing shows Gary to be a strong Type-O secretor. The defense argues this testimony was incorrect.

The prosecution says the evidence is inconsequential: Defense attorneys thoroughly cross-examined the prosecution expert during Gary’s trial, and had the defense produced its own expert to contradict the prosecution’s, the jury merely would have had dueling testimony that likely would not have altered the outcome of Gary’s trial.

▪ On Dec. 28, 1977, Kathleen Woodruff, 74, was found raped and strangled in her 1811 Buena Vista Road home, which later was demolished during an Aflac expansion. Gary’s fingerprints were found on a rear window where the intruder entered.

Once more the defense argues the fingerprint evidence lacks sufficient comparison points, but prosecutors counter the Woodruff print has 16 points matching Gary’s right, little finger.

▪ On Feb. 11, 1978, Ruth Schwob, 74, of 1800 Carter Ave., was nearly strangled to death by an intruder she fought off, pressing a panic alarm by her bed. Police found her sitting on the edge of her bed, gasping, a stocking wrapped around her neck.

The defense argues Gary could not have left a footprint found on an air-conditioning unit the intruder stood on to climb into Schwob’s window. The print was a size 10. Gary wears a size 13½.

The prosecution counters that the defense has no photograph that documents this evidence, only a photocopy of the sole of a shoe investigators said was comparable. It notes also that a detective testified Gary told him he sometimes wore smaller shoes to fool the police.

▪ On Feb. 12, 1978, Mildred Borom, 78, 1612 Forest Ave., about two blocks from Schwob’s home, was found raped and strangled with a cord cut from window blinds. Her body was covered with a garment.

▪ On April 20, 1978, Janet Cofer, 61, of 3783 Steam Mill Road, was found raped and strangled with a stocking. A pillow covered her face.

Investigators found a bite mark on Cofer’s left breast, and the coroner had a dentist make a mold from it, preserving the teeth marks. The mold was lost until Nov. 9, 2005, when then-Coroner James Dunnavant found it in a file drawer in his office.

The defense says the mold shows a gap in the biter’s upper teeth and a crooked lower tooth, defects Gary’s teeth never had. Prosecutors argue the mold does not show a clear imprint of the lower teeth, and any flaws in the upper teeth are inconclusive because Gary later had dental work on his upper teeth in prison.

▪ On May 3, 1984, authorities arrested Gary in Albany, Ga., and brought him to Columbus. That night, from around midnight until 3:30 a.m., he is alleged to have taken investigators on a tour of homes he broke into, blaming the stranglings on an accomplice, as he did in other cases.

His confession was not recorded, nor did police create a written statement for Gary to sign. The defense argues it is invalid, noting that in the Farmer case, in 1970, Gary gave a full statement 12 pages long and signed it.

The prosecution notes that the statement Gary signed in New York was a confession only to burglary, as he blamed Farmer’s murder on someone else. Gary similarly signed a confession to avoid being charged with rape when he was questioned in the Jan. 2, 1977, assault on Jean Frost in Syracuse.

Prosecutors note also that during that 1984 drive around Columbus after his arrest, Gary gave detectives details that police didn’t know about:

▪ On Dec. 20, 1977, the 1710 Buena Vista Road home of William Swift was burglarized while the residents were away. Swift later discovered the burglar removed bars from a kitchen window to get in, but he never told police that. Detectives said Gary in 1984 told them how he broke into the Swift’s residence.

The state notes also that Gary’s confession was thoroughly challenged during his 1986 trial, so the defense is not citing “new” evidence when it brings that up on appeal. The validity of Gary’s statement already has been argued.

The prosecution’s response concludes:

“Based on the scientific results of the DNA testing in Mrs. Dimenstein’s case and the overwhelming evidence of his guilt presented at his original trial, it is absolutely clear that Carlton Gary is indeed the Columbus ‘Stocking Strangler.’”

This story was originally published November 14, 2017 at 3:12 PM with the headline "Prosecutors: ‘Overwhelming evidence’ shows Ga. Supreme Court should reject Carlton Gary appeal."