Arguing to DNA-test evidence in a rape that preceded Columbus’ seven “Stocking Stranglings” of 1977 and ’78, attorneys for condemned strangler Carlton Gary say prosecutors contradict themselves by saying that case is not crucial but a DNA match to Gary from a strangling he was not convicted of is.
Atlanta attorney Jack Martin, Gary’s lead defense counsel, says the prosecution cannot have it both ways and ignore doubts raised by a DNA test showing semen found at a strangling Gary was convicted of came from someone else.
Martin’s motion filed Monday is the latest salvo in a series of arguments over whether to conduct more DNA testing after the first round of tests last year yielded mixed results, matching Gary to evidence from the Sept. 24, 1977, rape and strangling of Jean Dimenstein, 71, of 3027 21st St., but not to semen collected in the case of Martha Thurmond, 69, who was found beaten, raped and strangled Oct. 25, 1977, in her 2614 Marion St. home.
The defense now wants to test evidence in the Sept. 11, 1977, rape and aggravated assault of Gertrude Miller, 64, of 2703 Hood Street, who survived the attack investigators later decided was a precursor of the seven serial killings to come. Miller’s testimony during Gary’s trial in 1986 became crucial to his prosecution, because Miller in court identified him as her attacker. Miller has died since Gary’s 1986 trial, which preceded the use of DNA evidence in U.S. courts.
Besides Thurmond, Gary was convicted in two other stranglings, those of Florence Scheible, 89, of 1941 Dimon St., on Oct. 21, 1977; and Kathleen Woodruff, 74, of 1811 Buena Vista Road, on Dec. 28, 1977.
Besides Dimenstein, the stranglings in which Gary was not convicted were of Ferne Jackson, 60, of 2505 17th St.; on Sept. 15, 1977; Mildred Borom, 78, of 1612 Forest Ave., on Feb. 12, 1978; and Janet Cofer, 61, of 3783 Steam Mill Road, on April 20, 1978.
Of the prosecution’s Feb. 18 motion opposing further DNA testing, Martin writes: “The state begins the state’s response by boldly claiming that the results of the DNA tests conducted in the Dimenstein case ‘conclusively establishes defendant’s guilt and culpability in these crimes’ and therefore ‘forecloses defendants’ innocence claims.' Amazingly, the state fails to concede that the defendant was never convicted of the rape/murder of Ms. Dimenstein. But, even more shocking, the state fails even to mention, must less appreciate the significance of, the DNA results in the Thurmond case, for which the defendant was actually convicted and sentenced to death, which absolutely and to a scientific certainty exclude the defendant as her rapist.”
Prosecutors maintained at Gary’s trial that only one person committed the stranglings, and they used evidence from other cases, called “similar transactions,” to show a pattern of criminal conduct. So the defense argues that if the Dimenstein case is important, as the prosecution argues, then so is the Miller case, and a DNA test may prove whether the victim accurately identified Gary as her assailant.
The prosecution can’t at the same time argue that one is important in establishing Gary’s guilt or innocence and the other is not, Martin argues.
Of the prosecution’s Feb. 18 motion, Martin writes: “The state first argues that the claimed DNA match in the Dimenstein case, a similar transaction case for which the defendant was not convicted, is in and of itself sufficient to foreclose any claim of innocence, no matter what the evidence might be with respect to the cases where the defendant was actually convicted. Only pages later, the state inconsistently argues that DNA tests in the Miller case, another similar transaction case, showing that the defendant did not actually rape Ms. Miller, who at trial identified the defendant as her one and only attacker, ‘are NOT likely to establish the perpetrator of the crimes’ and ‘would have no effect on the outcome of the defendant’s convictions.’ Although it wants to, the state cannot have it both ways. Either the similar transaction cases are important or they are not.”
Both sides now are to confer with Muscogee Superior Court Judge Frank Jordan Jr. within 15 days to decide how to proceed from here.
Gary, 60, remains in Georgia’s death-row prison in Jackson. He was hours away from lethal injection Dec. 16, 2009, when the state Supreme Court issued a stay and ordered a Muscogee Superior Court judge to hold a hearing on DNA testing. On Feb. 19, 2010, the defense and prosecution reached an agreement on what evidence to test last year.