Convicted Columbus “Stocking Strangler” Carlton Gary moved another step closer to execution Tuesday when the Georgia Supreme Court rejected his appeal for reconsideration and sent the case back to Muscogee Superior Court, where the judge hearing it just retired.
The state Supreme Court last rejected the condemned serial killer’s appeal on Dec. 1. Ten days later, Gary’s Atlanta attorneys Jack Martin and Michael McIntyre asked the court to reconsider that decision, and to retain custody of the case instead of sending it back to Muscogee County.
Prosecutors in their Dec. 15 response wrote that the defense was trying to buy time to appeal to the U.S. Supreme Court, which previously has refused to review Gary’s case.
Once the case comes back to Columbus, the Superior Court judge presiding over it can issue a “death warrant” designating a week during which the Georgia Department of Corrections may schedule Gary’s execution. The presiding judge was Frank Jordan Jr., who retired Dec. 31.
Gov. Nathan Deal has yet to appoint Jordan’s successor. The top candidates are Muscogee State Court Judge Ben Richardson, retired Aflac general counsel and Juvenile Court Judge Joey Loudermilk, Chattahoochee Judicial Circuit District Attorney Julia Slater, and attorney Ben Land, a partner in the law firm Buchanan & Land and the younger brother of U.S. District Court Judge Clay Land.
Those candidates are to be interviewed for the position this week. Were Slater to get the appointment, she would have to recuse herself from Gary’s case, having been among his prosecutors.
The current vacancy should not delay setting an execution date, said Senior District Attorney Don Kelly. The Georgia Attorney General’s office in consultation with the Department of Corrections will prepare the execution order, he said, and prosecutors here will present it to the appropriate judge. If Jordan’s successor has not been sworn in by then, the order will go to the judicial circuit’s chief judge, Gil McBride, Kelly said.
In asking the Georgia Supreme Court to reconsider hearing Gary’s appeal, his attorneys argued the justices had not allowed sufficient time to review the “complicated” and “unique” issues of the case, particularly the question of whether evidence of Gary’s innocence would have led jurors to render a different verdict or sentence, had it been presented during his 1986 trial.
Gary was convicted and sentenced to death for three of the seven rapes and stranglings of older women here in late 1977 and early 1978, but prosecutors used evidence from all the murders and assaults in which Gary was implicated to illustrate the pattern of a ritual serial killer, maintaining Gary was the sole perpetrator.
The defense has argued that because prosecutors used all those cases to prove Gary’s guilt, any new evidence from them that does not match him could have led jurors in 1986 either to acquit Gary or to give him a sentence other than death.
These are the relevant cases, starting when Gary lived in New York in the early 1970s:
- On April 14, 1970, Nellie Farmer, 85, was raped and strangled and her body left covered in her home in the Wellington Hotel in Albany, N.Y. Gary’s fingerprint was found at the scene. He claimed another man killed Farmer. The defense maintains a shoe print on a mat in the bathroom where the killer washed off was too small to fit Gary, who wears a size 13½.
- On Jan. 2, 1977, Jean Frost, 55, was raped and nearly choked to death in her home in Syracuse, N.Y. Gary had a watch taken from Frost’s home when police arrested him two days later. Again he blamed another man.
- After Gary moved home to Columbus, Gertrude Miller, 64, was beaten with a board and raped here in her 2703 Hood St. home. Her assailant left behind knotted stockings he took from her dresser. She in 1986 identified Gary as her rapist, but a later DNA test on her clothing yielded a profile that did not match him.
- 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. She was considered the first of the seven “Stocking Strangler” victims. Gary was not convicted in her case.
- On Sept. 24, 1977, Jean Dimenstein, 71, was found raped and strangled with a stocking in her home that then had the address 3027 21st St. (the street has since been renamed). Her body was left covered with sheets and a pillow. A later DNA test from her vaginal washings yielded a profile matching Gary, but he was not convicted in her case.
- 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. He was convicted in her case.
- 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. He was convicted in this case, from which police collected semen samples later thought suitable for DNA testing. The Georgia Bureau of Investigation crime lab accidentally tainted and destroyed that evidence.
- 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 right little fingerprint was found on the aluminum window screen where the intruder entered, and his palm print was found on the windowsill just inside. He was convicted in her case.
- 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 with a stocking wrapped around her neck. The defense maintains a shoe print found on an air-conditioning unit the intruder stood upon to climb into her window was too small to match Gary.
- 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. Gary was not convicted in her death.
- 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 her breast, and had a dentist create a mold from it. The indentations indicate the killer had dental flaws that Gary never had, the defense argues. Gary was not convicted in her case.
DNA testing was not in use when Gary was tried in 1986. The defense and prosecution agreed in February 2010 to test any stranglings evidence deemed suitable, after the Georgia Supreme Court in December 2009 stayed Gary’s execution and sent the case back to Muscogee Superior Court, instructing it to consider DNA tests.
After the tests’ mixed results, Gary’s defense team moved for Jordan to grant Gary either a new trial or new sentencing.
After holding hearings and arguments on the defense evidence, Judge Jordan ruled Sept. 1 that it was not “material” enough to have led jurors in 1986 to render a different verdict or sentencing. In appealing to the state Supreme Court, the defense argued Jordan erred.
The Miller DNA test alone could have caused at least one juror to have a “lingering doubt” as to Gary’s guilt and to vote against a death sentence, the defense said:
“The attack on her fit all of the common factors of the Columbus Stocking Strangler the state contended was Mr. Gary. The Superior Court failed to address whether this absolute exoneration could have created lingering doubt as a compelling mitigating circumstance. After all, lingering doubt is a compelling mitigating circumstance as to sentence and if only one juror found such lingering doubt then no death sentence can be imposed.”
Gary’s attorneys argued also that because the Miller DNA profile didn’t match Gary, any profile derived from the semen found on Thurmond likely would not have fit him, either, and the state recklessly destroyed that evidence. This also “constituted a compelling mitigating circumstance which would have likely affected a jury’s sentence of death,” they wrote.
The prosecution in its response wrote that Gary’s lawyers wanted time to appeal to the U.S. Supreme Court on these two issues:
- “Whether it would violate the United States Constitution to execute Mr. Gary given the sum of the exonerating evidence in this case raising serious doubts as to his guilt and his death sentence.”
- “Whether the destruction of critical potentially exonerating evidence by the state, whether intentional or not, violated Mr. Gary’s due process rights and protections against cruel and unusual punishment, or at least should be known to the jury, especially when there was a high probability that the destroyed evidence would have exonerated Mr. Gary.”
Neither was an issue presented to Jordan, so neither is an issue for appeal, and neither warranted the state Supreme Court’s retaining Gary’s case rather than sending it back to Columbus, prosecutors wrote:
“Given the overwhelming evidence of defendant’s guilt and the lengthy delay in carrying out his sentence of death, it would be counter to the ends of justice to prohibit the state from seeking an execution warrant and grant defendant a postponement for the purposes of filing another futile appeal, raising issues which were not raised in the trial court.”
Gary’s attorneys have not yet filed for a new appeal to the U.S. Supreme Court, prosecutors said Tuesday.
Born Carlton Michael Gary in Columbus on Sept. 24, 1950, Gary today remains on death row in the Georgia Diagnostic and Classification Prison in Jackson.
CARLTON GARY TIMELINE
This timeline was compiled from Columbus police, court records and Ledger-Enquirer archives:
Sept. 24, 1950, Carlton Michael Gary is born in Columbus, Ga., where he lives until age 16, when he moves with his mother to Fort Myers, Fla., and later Gainesville, Fla.
Sept. 3, 1964, Gary attends Carver High School.
Nov. 18, 1965, Gary attends Spencer High School.
Jan. 31, 1966, Gary returns to Carver High School and later transfers to Dunbar High School in Fort Myers, Fla.
Oct. 31, 1967, Gary’s charged with breaking into an automobile in Gainesville, Fla.
March 17, 1968, Gary’s charged with arson in Gainesville, Fla.
Nov. 26, 1969, Gary’s charged with assaulting a police officer in Bridgeport, Conn.
April 14, 1970, Nellie Farmer, 85, is raped and strangled and her body left covered in her home in the Wellington Hotel, Albany, N.Y. Gary’s fingerprint is found at the scene. Gary claims another man killed Farmer, and is convicted only of robbery.
July 15, 1970, Gary’s sentenced to 10 years in prison for robbery.
March 31, 1975, Gary is released from prison and moves to Syracuse, NY.
June 27, 1975, the body of Marion Fisher, 40, is found on a road just outside Syracuse. She was raped and strangled. Authorities in 2007 say they match Gary’s DNA to the cold-case evidence.
July 25, 1975, Gary’s charged with escape, resisting arrest and violating parole.
July 17, 1976, Gary’s released on parole.
Sept. 3, 1976, Gary’s charged with assault.
Jan. 2, 1977, Jean Frost, 55, is raped and nearly choked to death in her home in Syracuse, N.Y. Gary has a watch taken from Frost’s home when police arrest him two days later. Again he blames another man for the assault. He is charged with possessing stolen property, resisting arrest, perjury and assault.
Aug. 23, 1977, Gary escapes from New York’s Onandaga County prison by jumping from a third-floor window. He goes home to Columbus, where he soon moves to 1027 Fisk Ave.
Sept. 11, 1977, Gertrude Miller, 64, is beaten with a board and raped in her 2703 Hood St. home, about two blocks from Fisk Avenue. Her assailant leaves behind knotted stockings he took from her dresser. She in 1986 identifies Gary as the rapist.
Sept. 16, 1977, Mary Willis “Fern” Jackson, 59, of 2505 17th St., is found brutally beaten, raped and strangled with a stocking and sash. Her body is left covered. Her stolen car is later found on Benner Avenue near Fisk Avenue.
Sept. 24, 1977, Jean Dimenstein, 71, is found raped and strangled with a stocking in her home that then had the address 3027 21st St. (the street has since been renamed). Her body was left covered with sheets and a pillow Later tests match Gary’s DNA to crime-scene evidence.
Oct. 4, 1977, Gary moves to 3231 Old Buena Vista Road.
Oct. 8, 1977, the 1427 Eberhart Avenue home of sisters Callye East, 75, and Nellie Sanderson, 78, is burglarized. Sanderson’s son Henry is visiting. The intruder steals his Toyota, which has a .22-caliber Ruger pistol under the seat. The car’s left on Buena Vista Road.
Oct. 21, 1977, Florence Scheible, 89, is 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.
Oct. 25, 1977, Martha Thurmond, 70, is 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 is found on the frame of a rear bedroom window.
Nov. 11, 1977, Gary moves to 2829 Ninth St. and gets a job working the late shift at Golden’s Foundry.
Dec. 16, 1977, Gary leaves the foundry job.
Dec. 20, 1977, the 1710 Buena Vista Road home of William Swift is burglarized while the residents are away. Swift later discovers the burglar removed bars from a kitchen window to get in, then set the bars back on the windowsill. Detectives later say Swift never told police this; Gary did.
Dec. 28, 1977, Kathleen Woodruff, 74, is found raped and strangled in her 1811 Buena Vista Road home, which later was demolished during an Aflac expansion. Gary's right little fingerprint is found on the aluminum window screen where the intruder entered, and his palm print is found on the windowsill just inside.
Jan. 1, 1978, the 2021 Brookside Drive home of Abraham Illges, who is 85 and whose wife is 75, is burglarized and a Cadillac stolen. The car’s left at a restaurant on Victory Drive. Police say Gary later refers to this home as “the castle.”
Feb. 11, 1978, Ruth Schwob, 74, of 1800 Carter Ave., is nearly strangled to death by an intruder she fights off, pressing a panic alarm by her bed. Police find her sitting on the edge of her bed, gasping, a stocking wrapped around her neck.
Feb. 11, 1978, the Illges home is burglarized again, but the intruder triggers an alarm and flees. Police said Gary later told them he ran and hid in Wildwood Park.
Feb. 12, 1978, Mildred Borom, 78, 1612 Forest Ave., about two blocks from Schwob’s home on the west side of Wildwood Park, is found raped and strangled with a cord cut from window blinds. Her body’s covered with a garment. This series of rapid events becomes known as “The Night of Terrors.”
April 20, 1978, Janet Cofer, 61, of 3783 Steam Mill Road, is found raped and strangled with a stocking. A pillow covers her face. Police find Cofer’s stolen car on Mill Road.
April 20, 1978, Gary robs the Burger King at 3520 Macon Road.
May 14, 1978, Gary robs the Hungry Hunter restaurant at 1834 Midtown Drive.
Sept. 4, 1978, Gary robs the Western Sizzlin restaurant at 4385 Victory Drive.
Sept. 22, 1978, Gary robs the Talk of the Town restaurant in Greenville, S.C.
Oct. 8, 1978, Gary robs the Ryan’s Steakhouse in Greenville.
Oct. 19, 1978, Gary robs the Western Sizzlin steakhouse in Greenville.
Nov. 5, 1978, Gary robs the Po’ Folks restaurant in Greenville.
Dec. 7, 1978, Gary robs Jack’s Steak House in Greenville.
Feb. 15, 1979, having earned the nickname “Steakhouse Bandit,” Gary robs a Po’ Folks restaurant in Gafney, S.C., and is arrested the next day.
Feb. 22, 1979, Gary is convicted of armed robbery in Greenville County, S.C.
March 29, 1979, Gary is convicted of armed robbery in Cherokee County, S.C.
March 15, 1984, he escapes from a prison in Columbia, S.C., and returns to Columbus.
April 3, 1984, Gary robs a Po’ Folks restaurant on the 280 Bypass in Phenix City and rapes a woman who works there.
April 10, 1984, Henry Sanderson calls Columbus police to ask about the Ruger pistol taken from his Toyota in the 1977 Eberhart Avenue burglary. A detective sends out a nationwide alert for the gun, which turns up in Michigan and is traced back to Gary.
April 16, 1984, Gary robs a Wendy’s restaurant in Gainesville, Fla.
April 22, 1984, Gary robs a McDonald’s restaurant in Montgomery, Ala.
April 28, 1984, Gary robs the County Seat Store in the Oaks Mall of Gainesville, Fla.
April 30, 1984, prompted by Sanderson’s call and the gun trace, copies of Gary’s fingerprints arrive at the Columbus Police Department, where one is matched to a print found on the frame of a screen removed from Woodruff’s home.
May 3, 1984, authorities arrest Gary in Albany, Ga.
May 4, 1984, from around midnight until 3:30 a.m., Gary takes investigators on a tour of homes he tells them he broke into. He blames the stranglings on another man.
May 8, 1984, Gary attempts suicide in jail.
May 9, 1984, then Superior Court Judge John Land appoints attorneys William Kirby and Stephen Hyles to represent Gary.
Aug. 28, 1984, attorney August “Bud” Siemon becomes Gary’s lead defense counsel.
Oct. 11, 1984, attorney Bruce Harvey becomes Gary’s co-counsel. Attorney Gary Parker joins the defense team the following December.
Feb. 8, 1985, Siemon files a motion asking Judge Land to recuse himself because he has personal knowledge of the case. Land recuses himself.
May 13, 1985, Judge E. Mullins Whisnant is assigned the case.
May 22, 1985, Siemon files a motion asking Whisnant to recuse himself because he was the district attorney during the strangling.
May 20, 1985, Whisnant recuses himself and the case is assigned to Judge Kenneth Followill.
Dec. 18, 1985, Parker withdraws as co-counsel after Followill refuses to grant the defense team funds for an investigator.
Dec. 29, 1985, Gary tries to escape from jail.
March 10, 1986, on the day Gary’s trial is to start, he refuses to get dressed and come to court. Harvey files a motion questioning Gary’s competency to stand trial, saying the defendant’s mental health is in decline. Followill orders a psychological evaluation.
March 24, 1986, Gary goes to Georgia Central State Hospital in Milledgeville for his evaluation, but refuses to cooperate with doctors.
April 21, 1986, Followill holds a trial to determine Gary’s mental competency.
April 28, 1986, the jury finds Gary competent for trial.
June 9, 1986, Gary’s trial is set to begin, but Siemon files for a change of venue.
July 2, 1986, Followill decides that instead of moving the trial, the court will bring jurors from Griffin, Ga., to hear the case.
July 7, 1986, Harvey withdraws, leaving Siemon as Gary’s only lawyer.
Aug. 11, 1986, Gary’s trial begins.
Aug. 26, 1986, the jury finds Gary guilty in three of the seven stranglings, though then District Attorney Bill Smith maintains one perpetrator committed all seven along with the attack on Miller and Schwob. Smith used evidence from the other cases to illustrate a pattern of criminal behavior.
Aug. 27, 1986, the jury sentences Gary to death.
Sept. 25, 1986, Gary moves for a new trial. His motion’s denied the following Oct. 18, and he appeals to the Georgia Supreme Court.
June 26, 1987, the Georgia Supreme Court sends the case back to Columbus, instructing the court here to determine whether Gary had ineffective counsel.
Nov. 4, 1987, Followill holds hearings to determine the effectiveness of Gary’s defense.
June 12, 1989, Followill rules Gary failed to show his counsel was ineffective.
March 6, 1990, the Georgia Supreme court upholds Followill’s ruling and reaffirms Gary’s conviction and death sentence.
Jan. 27, 1995, the superior court of Butts County, Ga., where Gary is imprisoned, rejects one of his habeas corpus appeals.
Nov. 13, 1995, the court rejects another of Gary’s habeas corpus appeals.
Nov. 18, 1997, Gary files a habeas corpus appeal in U.S. District Court for the Middle District of Georgia.
Sept. 28, 2004, the federal court rejects Gary’s appeal, and he appeals to the 11th Circuit Court of Appeals.
Nov. 9, 2005, then-Coroner James Dunnavant finds a bite-cast mold made from teeth marks on Janet Cofer’s body. It has been missing since Dunnavant’s predecessor Don Kilgore died.
Nov. 23, 2005, the appeals court sends the case back to U.S. District Court to consider the bite-mark evidence.
Feb. 14, 2007, the district court holds a hearing and decides the bite cast would not have bolstered Gary’s defense and again rejects his appeal. Gary again appeals to the 11th Circuit.
Feb. 12, 2009, the 11th Circuit rejects Gary’s appeal. He appeals to the U.S. Supreme Court.
Dec. 1, 2009, the U.S. Supreme Court refuses to hear Gary’s appeal. His execution is set for the following Dec. 16.
Dec. 16, 2009, Gary is hours away from execution when the Georgia Supreme Court issues a stay and sends the case back to Muscogee Superior Court to consider DNA testing evidence.
Feb. 19, 2010, prosecutors and defense attorneys agree to DNA test suitable evidence samples, four items from three cases: Dimenstein, Scheible and Woodruff.
Dec. 14, 2010, attorneys say the initial DNA test results match Gary to the murder of Jean Dimenstein but not Martha Thurmond. The defense seeks testing on clothes from Gertrude Miller the morning after she was raped and beaten.
March 6, 2012, tests of the Miller evidence yield a DNA profile that does not match Gary. The prosecution says the defense can’t prove Miller was wearing the garments when raped.
Nov. 21, 2013, District Attorney Julia Slater announces the Thurmond DNA test was tainted at the state crime lab and thus invalid.
February 24-28, 2014, Judge Frank Jordan Jr. holds evidentiary hearings on Gary’s new trial motion.
Jan. 11, 2016, Doug Grubbs, son-in-law of sheriff’s investigator Don Miller, in the attic finds a briefcase containing files on the strangling. He turns it over to the sheriff’s office.
Jan. 27, the defense is told of the briefcase.
Feb. 3, both sides meet to inspect the documents. They find a composite sketch believed to have been drawn as Gertrude Miller described her assailant under hypnosis in October 1977.
Jan. 12-12, 2017, Jordan holds a final set of hearings on the new evidence in Gary’s motion for a new trial.
June 27, the prosecution files a motion asking Jordan to issue a ruling.
Sept. 1, Jordan denies Gary’s motion for a new trial in a 50-page ruling.
Sept. 20, Gary’s attorneys file for an extension of the deadline to appeal to the Georgia Supreme Court.
Nov. 1, the defense files a 90-page application for appeal to the Georgia Supreme Court.
Nov. 13, the prosecution responds.
Dec. 1, the Georgia Supreme Court rejects Gary’s appeal.
Dec. 11, the defense asks the state Supreme Court to reconsider and to retain custody of the case instead of sending it back to Muscogee Superior Court, where a judge can set an execution date.
Dec. 15, the prosecution responds.
Dec. 31, Superior Court Judge Frank Jordan Jr. retires.
Jan. 16, the Georgia Supreme Court rejects both defense motions, sending the case back to Muscogee Superior Court, where Jordan’s successor is yet to be appointed.