First the hearing started 81 minutes late, then it was postponed for three weeks.
By the time court was adjourned near noon today, not much progress publicly had been made in determining whether to DNA-test evidence from Columbus’ 1970s “Stocking Stranglings” to see whether it matches convicted strangler Carlton Gary.
But behind the scenes, negotiations between the prosecution and defense are ongoing, attorneys said.
Both District Attorney Julia Slater and defense attorney Jack Martin said they are talking about proceeding with the DNA testing. It is not necessary for both sides to consent, because Muscogee Superior Court Judge Robert Johnston can order it on his own authority. But if both sides agree, the decision is unlikely to be challenged later, Slater said.
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“I think that certainly the court has the power to order testing without anybody’s consent,” Slater said. “I think the legal proceedings would be different, certainly, if there’s a consent order as opposed an order over the objection of either party. There are always appeal options if the court makes a decision over the opposition of somebody, which would not be present with a consent.”
At Martin’s request, Johnston delayed the DNA hearing until Feb. 22. Martin said he needed to further consult with his client, with whom he has not spoken in person since Dec. 16, the day Gary was to be executed.
The Georgia Supreme Court halted that execution four hours before it was to go through, and ordered Johnston to hold a hearing here on DNA-testing evidence.
Slater said she could not object to today’s delay: “The defense said that they had not had an adequate opportunity to communicate with Mr. Gary, and that’s why they asked for the continuance. I certainly feel like if they feel they have not been able to communicate adequately with their client, to go forward with the hearing would have been an error. So I did not object to it, and I think the judge made a sound decision to allow the continuance.”
Johnston twice denied Martin’s motion for DNA testing the week before Gary’s scheduled execution. The judge referred to those dual rejections today.
“Sometimes when you do things too fast, you make a mistake,” Johnston said. “The reason we’re having this hearing is the Supreme Court said I made a mistake.”
The hearing was to begin at 10:30 a.m. At 10:35 a.m., Johnston told about 40 people waiting in the audience that Martin and cocounsel Michael McIntyre were meeting with Gary. The judge said he intended to give them as much time to talk as they needed.
The hearing finally commenced at 11:51 a.m., and lasted only four minutes. Johnston lamented that defense attorneys were having difficulty communicating with Gary at the Georgia Diagnostic and Classification Prison in Jackson, where Gary is on death row. The judge said he would try to help rectify that situation.
Wearing dark glasses, a white Department of Corrections uniform and blue jacket, Gary was brought into the courtroom under tight security about 11:45 a.m. He smiled and with two fingers blew a kiss to wife Debra, whom he married in prison. She was there with daughter Charity, whom Gary adopted.
The two women said after the hearing that since Jan. 1, they have been subjected to new security measures while visiting Gary at the death-row prison. Debra Gary said they were allowed to have “open contact” with Gary during a visit on New Year’s Eve — meaning they were all together in a room with nothing separating them — but the next day had to have a metal screen between them and Gary, which made communication difficult.
Debra Gary said she was told another inmate had been caught with bomb-making material, and that prompted the tighter security.
Peggy Chapman with the state Department of Corrections’ Office of Public Affairs said investigators were probing a case in which an inmate on death row was caught with “contraband,” and that’s why security was tightened. Chapman could not say what sort of contraband was found.
Martin said after today’s hearing that he had trouble trying to get Gary on the telephone. Attorneys cannot just call Gary up; they must call the prison and ask that Gary be given a message to call them, he said. If they don’t hear from Gary, they don’t know whether he got the message, said Martin.
Chapman said the prison’s stricter security measures should not affect communication between an inmate and his attorney of record. In an e-mail she cited this as the policy for attorney-inmate meetings:
“An inmate’s attorney of record and clergy are the only ones permitted face-to-face contact visits. Paralegals and other legal staff, as well as family and friends, are not permitted contact visits…. Attorneys are required to give 24 hours’ notice to visit a UDS (Under Death Sentence) inmate in person. These visits are allowed Monday-Friday….”
As for phone calls, Chapman wrote: “Once the attorney calls the prison requesting they be able to speak with an inmate Under Death Sentence, the inmate is removed from his cell and brought to the telephone area. Inmates are allowed to call back on the same day, with very rare exceptions. If an inmate wants to talk to his attorney of record, they make the request to the officer and they are allowed to make calls daily.”
Courtroom security in Columbus was strict today as well. All visitors twice had to pass through metal detectors, once when they entered the Government Center and again when they got to Johnston’s 11th-floor courtroom. Media representatives were allowed to shoot only still photographs, as video cameras were prohibited.
In the audience, the courtroom’s front rows were blocked off with yellow tape to keep the area near the defense table clear. Beyond the wood partition separating the audience from the judge and attorneys, seven or eight deputies stood or sat around where Gary was seated.
Among those in the audience were Edward DuBose, president of the Georgia NAACP, and the Rev. Marcus Hunter, president of the local NAACP branch. They sat beside Debra Gary.
One strangling victim’s granddaughter attended, as did Mike Sellers, one of the detectives who built the case against Gary in the 1980s.
A Muscogee County Sheriff’s detail brought Gary to Columbus from Jackson, and took him back soon after the hearing ended.
Gary was arrested in 1984 and in 1986 convicted in three of the seven stranglings that terrorized Columbus in 1977 and ’78. DNA testing was not used in U.S. courts when Gary was tried.
Sellers, who after Gary’s 1986 trial left the Columbus Police Department in 1987 to take a job in Gwinnett County and retired there in 2007 to work as an investigator for the Athens-Clarke County attorney’s office, said he has kept up with Gary’s case over the years.
Of today’s delay, Sellers said he expected it, but was disappointed and felt the case has “dragged out way too long.” The current focus on DNA testing ignores all the other evidence used to convict Gary, including Gary’s own admissions to police, he said.
Sellers also was offended by critics’ speculating that Gary was scapegoated for the stranglings. Gary’s criminal record was extensive, he noted: “They’ll either have to believe a career criminal or an honest cop,” Sellers said.