Convicted “Stocking Strangler” Carlton Gary is filing a flurry of last-minute appeals to stop his execution by lethal injection, set for 7 p.m. Thursday at Georgia’s Diagnostic and Classification Prison in Jackson.
He’s to have a clemency hearing Wednesday in Atlanta before the Georgia Board of Pardons and Paroles, which has the authority to commute his death sentence to life without parole, or stay his execution for 90 days. The board declined to do either when Gary last came before it in 2009.
Gary has declined to order a last meal, the state Department of Corrections announced Tuesday, so he will be served a standard prison meal of grilled hamburger, hot dog, white beans, coleslaw and a grape beverage.
Gary has applied for an appeal to the U.S. Supreme Court, and sought a stay of execution in Muscogee Superior Court. Prosecutors have filed opposition briefs in both venues.
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In their latest filings, Gary’s Atlanta defense attorneys John “Jack” Martin and Michael McIntyre have cited the same evidence they used last year in trying to get Gary either a new trial or new sentence in Muscogee Superior Court, where Judge Frank Jordan Jr. rejected their motions Sept. 1.
The Georgia Supreme Court upheld Jordan’s decision Dec. 1 and refused to reconsider its ruling on Jan. 16.
In seeking the stay, the defense argues Gary’s execution date is “prematurely” set so that he won’t have time for a U.S. Supreme Court review, the deadline for which is April 16.
“This court should stay the premature execution date … and allow Mr. Gary’s petition before the Supreme Court of the United States to be thoroughly and thoughtfully considered and not prejudiced by the existence of a premature execution date,” the attorneys wrote.
The constitutional issues they hope the U.S. Supreme Court will consider are whether Gary’s execution would violate his rights under the Eighth and 14th Amendments to the Constitution.
“Mr. Gary cannot be brought back to life, but the state can seek another execution date after Mr. Gary has received the review of his new constitutional claims to which he is entitled,” they wrote in requesting a stay.
In their application to the U.S. Supreme Court, the attorneys cited these portions of the constitutional amendments they say are applicable to Gary’s case:
The Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
The 14th Amendment says no state shall “deprive any person of life, liberty or property, without due process of law.”
In opposing Gary’s Superior Court motion for a stay, District Attorney Julia Slater wrote Wednesday that the defense must show Gary’s execution amounts to “cruel and unusual punishment,” and it has failed to meet that standard.
She noted also that the U.S. Supreme Court has held that both the state and the crime victims “have an important interest in the timely enforcement of a sentence.” Forty years have passed since the heinous serial killings of seven older women in 1977 and ’78, and Gary’s appeals have been thoroughly reviewed and rejected, she wrote:
“It is time for the state to be allowed to carry out its lawful sentence of death.”
Gary has failed to prevail on his previous claims, so he is unlikely to win a Supreme Court appeal, she added, so staying his execution now will serve no public interest: “The state has an interest in seeing that its laws are enforced and in carrying out executions as scheduled. Further unnecessary delay hinders that interest.”
Gary’s execution has been delayed before: He was to be executed Dec. 16, 2009, when the state Supreme Court issued a stay and sent the case back to Superior Court to consider DNA testing, which subsequently yielded mixed results.
The defense in its application to the U.S. Supreme Court emphasized that during this testing, the Georgia Bureau of Investigation tainted and destroyed a semen sample from the Oct. 25, 1977, rape and strangling of Martha Thurmond, 70.
That was one of the three stranglings cases in which Gary was convicted, and the defense felt it offered the most promising evidence, likely conclusive in determining Gary’s guilt or innocence.
The state’s destroying that evidence eliminated Gary’s best shot at a new trial or new sentencing, and now raises the likelihood Georgia is about to execute an innocent man, the defense argued.
The state attorney general in its opposition brief countered that a DNA test on vaginal washings from Jean Dimenstein, 71, found raped and strangled Sept. 24, 1977, yielded a profile that matched Gary.
The attorney general concluded that “based on the scientific results of the DNA testing in Mrs. Dimenstein’s case and the overwhelming evidence of petitioner’s guilt presented at his original trial, it is absolutely clear that Carlton Gary is indeed the Columbus Stocking Strangler.”