Nonprofit attorneys for a black man convicted in 1977 of raping and killing a Fort Benning soldier’s German wife in her Broadway apartment are taking a new tack in trying to get him a new trial: arguing prosecutors systematically kept blacks off juries in his and other 1970s death-penalty trials.
The two agencies representing Johnny Lee Gates filed a motion Monday citing not only jury pool demographics, but also derogatory remarks they found on prosecution notes during jury selection.
It’s the latest salvo in a long-running legal battle over how the state has handled the case. Initially sentenced to death for the Nov. 30, 1976, rape, robbery and murder of Katharina Gertrude Wright, a newlywed who had just moved here with her husband, Gates challenged that sentence in 2003, arguing he shouldn’t be put to death because he had a mental disability, and an IQ of 65.
Georgia in 1989 executed a mentally challenged man named Jerome Bowden, also a Columbus case, and afterward the Georgia General Assembly outlawed such executions.
After a 2003 mistrial on his mental capacity, attorneys bargained to change Gates’ sentence to life in prison.
For years the Southern Center for Human Rights and the Georgia Innocence Project have been trying to win him a new trial, arguing prosecutors in 1977 withheld exculpatory evidence that could have altered the verdict. In 2015, the defense successfully argued to have evidence from the crime scene tested for DNA.
Now the attorneys are arguing then-prosecutors William Smith and Douglas Pullen in the late 1970s had a pattern of repeatedly striking all the black candidates from jury pools, while keeping notes labeling jurors “W” or “N,” and at times calling the black people “slow,” “old+ignorant,” “cocky,” “con artist,” “hostile” or “fat.”
In one case, a black public school teacher was noted as “Hostile,” the word underlined.
The defense also cites a scribbled comment regarding a white jury candidate in the trial of William Spicer Lewis, a black teen convicted of shooting white Columbus police Officer James Bowers in the head during a April 3, 1979, convenience store robbery.
The comment was “born and raised with G.B. and will (be) a top juror. He has to deal with 150 to 200 of these people what works for his construction co.”
The defense claims prosecutors also rated jurors on a scale of 1 to 5, with 5 being the most favored, and routinely ranked black candidates 1.
Here are some of the figures the defense cites:
- Pullen participated in five capital cases with black suspects from 1975 to ’79, and struck all of the 27 prospective jurors who were black.
- Smith had four black defendants facing the death penalty during that span, and struck all the black jury candidates in three cases. He excluded 10 black prospects in the fourth case, but ran out of strikes and couldn’t get an all-white jury.
Giving the defense hope of prevailing on this point is the 2016 U.S. Supreme Court decision Foster v. Chatman, regarding a Rome, Ga., death-penalty case involving Pullen.
The defendant, Timothy Foster, was convicted of beating, raping and strangling 79-year-old Queen Madge Wright during a burglary on Aug. 28, 1986.
Pullen in 1987 assisted District Attorney Stephen Lanier in Foster’s prosecution. Prosecution notes from jury selection showed black candidates’ names were highlighted in green and marked with an “N” for “No”; the black candidates’ race was circled on jury questionnaires; the black candidates were on a prosecution list of jurors titled “definite NOs”; and beside the name of a black candidate who attended the Church of Christ was the notation, “NO. No Black Church,” with “NO” and “Black” underlined.
In reversing Georgia court decisions upholding Foster’s conviction, the U.S. Supreme Court wrote that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.” Foster was granted a new trial.
In Gates’ case, the prosecution argues the defense failed to raise the all-white jury issue during his trial and early appeals, and has waited too late to do it now. Having failed to explore this earlier, the defense now cannot claim what it has learned about Gates’ jury selection is “new evidence,” which the standards for granting a new trial require, prosecutors wrote.
Gates was convicted Sept. 1, 1977. About two weeks later, Columbus witnessed the first in a series of rapes and murders that came to be known as the “Stocking Stranglings,” for which Georgia executed Carlton Gary last week.
Gary was black, and all of his victims were white. His supporters have claimed racism played a role in his 1986 trial.
Some of the death-penalty cases the defense cites in Gates’ motion for a new trial were contemporary to the stranglings that started Sept. 16, 1977 and ended April 20, 1978. In one case, defense attorneys claimed the publicity the serial killings generated affected their client’s right to a fair trial free of prejudice: The defendant was black and the victim was white.
Here are two of the 1970s cases cited in Gates’ appeal:
▪ William Anthony Brooks, convicted Nov. 18, 1977, for the kidnapping, robbery, rape and fatal shooting of Carol Jeannine Galloway the previous July 15. Brooks on appeal argued publicity about his case, concurrent with the stranglings, was so prejudicial that his trial should have been moved. He did not prevail on that claim, but higher courts still overturned his death sentence, ruling prosecutors during Brooks’ sentencing hearing improperly inflamed jurors with claims that were not in evidence.
▪ William Henry Hance, convicted Dec. 16, 1977, and executed March 31, 1994, for the bludgeoning death of Gail Jackson, a prostitute also known as Gail Faison. Her Feb. 28, 1978, murder was one of three attributed to him. Hance, who was black, became known as “The Forces of Evil” killer for sending police letters claiming to be a group of white vigilantes who would kill a black woman every 30 days if police did not solve the stranglings. A Fort Benning soldier, Hance was prosecuted in military court for two other slayings, those of Irene Thirkield and Karen Hickman.
The prosecutors in Brooks’ case were Smith and E. Mullins Whisnant. In Hance’s case they were Smith and Gray Conger. Brooks’ jury was all white, and only one black juror was on Hance’s panel.
These violent crimes, combined with the “Stocking Stranglings,” and with other controversial issues here and nationwide in the 1970s, instilled in the public a sense that society was dissolving into chaos. Prosecutors sometimes played on that.
In reversing Brooks’ sentence in 1983, the 11th Circuit Court of Appeals quoted excerpts from the prosecution’s 1977 argument for giving Hance the death penalty:
“How many times have you said to yourself as you pick up your morning newspaper or turn on your radio or television newscast, has the whole world gone crazy, when you read about a crime like this, has the whole world lost its mind? ... When have you said to yourself what can I do, just one citizen, just one individual, to stop this?”
Citing that and other examples, the court wrote: “A prosecutor may not incite the passions of a jury when a person’s life hangs in the balance. In Hance, a prosecutor’s inflammatory remarks, appealing to an already emotionally aroused jury during the sentencing phase of a murder prosecution, rendered the sentencing hearing fundamentally unfair and constitutionally intolerable.”
Gates in his appeals has raised similar claims, but the courts so far have rejected them.
Besides the all-white jury, another issue in Gates’ case are the results of DNA testing on evidence from Wright’s rape and murder.
On the day Wright was killed, her husband left to go to Fort Benning about 6 a.m. and found her dead in the bedroom of their second-floor apartment when he returned at 1:24 p.m.
Her partially nude body was face-up on the floor next to a door, a white belt from her bathrobe binding her wrists behind her back and a black military necktie around her neck. Three other neckties were near her head. She had been raped and shot once in the head with a .32-caliber pistol.
Digging through the old evidence in 2015, the Georgia Innocence Project discovered the white belt and ties still were stored in the district attorney’s office, and Senior Judge John Allen agreed to order the items be tested for DNA. The tests yielded DNA profiles that do not match Gates.
In subsequent court motions, the defense attorneys argue this is evidence of Gates’ innocence, bolstering his case for a new trial. The prosecution counters that other people have handled the belt and ties so often over the years that they likely left their DNA on the fabric, rendering the tests unreliable.
When Gates went to trial Aug. 30, 1977, the case against him seemed open and shut: Prosecutors had a videotaped confession, a fingerprint, and an eyewitness identification from one of Wright’s neighbors, who said Gates came to his door that day posing as a gas company worker. Gates confessed that he used that guise to get into Wright’s apartment, because she was having trouble with a heater.
She gave him a can of oil to use on the appliance, police said, and Gates left an oily fingerprint that was easily lifted.
His current attorneys have attacked this evidence as well:
They have noted that Gates was not the first suspect to confess. A white man caught fondling Wright’s body in the funeral home told police he had stalked Wright before he got into her apartment, tied her up and killed her.
The white suspect’s account more closely matched the crime scene, as he told police he tied the woman to a doorknob and shot her, the defense said. Gates in his confession told police he shot her as she sat on the bed, but no blood was on the bed, and no blood trail led from the bed to the door where the body was found, his attorneys said.
Despite having checked for fingerprints right after the murder, police did not find Gates’ fingerprint on the heater until January 1977, when they brought Gates to the crime scene for a “walk-through” before recording his confession. Gates could have touched the heater then, leaving the print allegedly placed there the day of the murder, the defense said.
In his confession, Gates told police he briefly worked on Wright’s heater before telling her he was going to rob her. She told him she had no money and offered sex. After they had sex, he again demanded money, and she gave him $480. Gates rummaged through drawers in the apartment before he tied the victim up on her bed and shot her, he told police.
Gates’ defense attorneys pointed out that no other fingerprints from Gates were found, though he claimed to have gone through the apartment looking for more money.
They also challenged the eyewitness identification, noting the witness picked Gates from a lineup the same day he saw the suspect with police at the crime scene.
The defense noted that blood found on the bedroom door near Wright’s body was determined to be Type B, but both Gates and Wright had Type O blood. “It indicates that a person other than Gates engaged in a struggle with the decedent and committed the offense,” the lawyers wrote.
Prosecutors have argued the evidence on which the defense relies in trying to gain Gates a new trial is not “material” enough to have resulted in a different verdict, another legal standard for granting new trials.
Gates is represented by Clare Gilbert of the Georgia Innocence Project and Patrick Mulvaney and Katherine Moss of the Southern Center for Human Rights. The prosecutors now are District Attorney Julia Slater and Assistant District Attorney Frederick Lewis of the Chattahoochee Judicial Circuit, and Georgia Senior Assistant Attorney General Sabrina Graham.
Judge Allen has set Gates’ next hearing for May 7.