Prosecutors push for ruling on ‘Stocking Strangler’ Carlton Gary’s new trial motion

Seven months have passed since convicted “Stocking Strangler” Carlton Gary’s last court hearing seeking a second trial based on what his attorneys say is new evidence, and prosecutors now are pushing Muscogee Superior Court Judge Frank Jordan Jr. to rule on the matter.

“This court concluded the final hearing and argument of the parties on January 13, 2017,” they wrote in a June 27 motion that cites this Georgia law:

“In all counties with more than 100,000 inhabitants, it shall be the duty of the judge of the superior, state, or city court, unless providentially hindered or unless counsel for the plaintiff and the defendant agree in writing to extend the time, to decide promptly, within 90 days after the same have been argued before him or submitted to him without argument, all motions for new trials, injunctions, demurrers, and all other motions of any nature.”

Adds the motion prosecutors filed: “More than 90 days has passed since the court heard arguments, and therefore, the state moves that the court rule without further delay.”

The document is signed by District Attorney Julia Slater and Senior Assistant District Attorney Don Kelly of the Chattahoochee Judicial Circuit; Sabrina Graham, a senior assistant attorney general; and Susan Boleyn, formerly a senior assistant attorney general now serving as a Chattahoochee Judicial Circuit special assistant district attorney assigned to Gary’s case.

The law says impeachment and removal from office may result from a judge’s failing to comply: “If any judge repeatedly or persistently fails or refuses to decide the various motions, demurrers, and injunctions coming before him in the manner provided by such subsections, such conduct shall be grounds for impeachment and the penalty therefore shall be his removal from office.”

Slater said prosecutors are not threatening to impeach Jordan; they’re just urging him to issue a ruling. No matter what the judge decides, it likely will be appealed to the Georgia Supreme Court, she said: “I anticipate that whatever the ruling is, one side will appeal.”

So attorneys need a ruling here before they can get on with the additional work they anticipate as the case moves toward a final resolution.

That final resolution was to be Gary’s death by lethal injection Dec. 16, 2009, but the state Supreme Court issued a stay just three hours before his scheduled execution and sent the case back to Muscogee Superior Court for hearings on testing DNA evidence.

DNA testing was not available in 1986 when Gary was tried and convicted in three of the seven heinous rapes and stranglings of older Columbus women. The serial killings concentrated in the Wynnton area terrorized the city between September 1977 to April 1978.

Though prosecutors in 1986 chose to seek convictions in the three cases with the strongest evidence, they maintained Gary committed all seven, as well as two assaults that victims survived. They used evidence from those other Columbus cases to illustrate a pattern of criminal conduct.

These are the nine Columbus cases:

• On Sept. 11, 1977, Gertrude Miller, 64, was brutally beaten with a board and raped in her 2703 Hood St. home. The assailant, who climbed in through her bedroom window, left behind three stockings he took from her dresser and knotted. Gary lived about two blocks away. Authorities later decided Miller was the first victim of the “Stocking Strangler,” so called because he so often used stockings to strangle women to death. The ritual serial killer also left his victims’ bodies covered.
• 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. Her stolen car was later found on Benner Avenue near Fisk Avenue.
• 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.
• On Oct. 21, 1977, Florence Scheible, 89, was found raped and strangled with a stocking in her 1941 Dimon St. home, which now has a different address. Her body was left covered. Gary’s right thumbprint was found on a door frame leading into Scheible’s bedroom.
• 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.
• 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 fingerprint was found on the aluminum window screen where the intruder entered, and his palm print on the windowsill inside.
• 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 sitting on the edge of her bed, gasping, a stocking wrapped around her neck.
• 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 dress.
• 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.

After the state Supreme Court stayed Gary’s execution, prosecutors and defense attorneys in February 2010 agree to test the stranglings evidence they deemed most likely to yield the killer’s DNA profile to compare to Gary’s.

The results were not convincing: Tests matched Gary’s DNA to evidence from Dimenstein’s murder, but not to Thurmond’s. Prosecutors later announced the Georgia Bureau of Investigation crime lab had tainted the Thurmond evidence and used it up, leaving nothing more to test.

Gary’s lead attorney Jack Martin then moved to test evidence found on clothing police collected after Miller’s assault. It did not match Gary’s DNA profile, but prosecutors argued the defense could not firmly establish Miller was wearing the clothes when she was attacked.

So, attorneys were left with conflicting DNA results. Defense attorneys called the Dimenstein semen evidence “a messy sample that was a mixture,” but prosecutors countered the evidence came from vaginal washings and thus was more reliable than samples derived from Miller’s clothes.

The defense cites other evidence it says does not match Gary:

• A sketch investigator Herman Boone drew based on descriptions Miller gave under hypnosis on Oct. 29, 1977. It does not look like Gary.
• Crime-scene evidence showing the strangler was a “nonsecretor,” meaning he was among 20 percent of the population that doesn’t secrete blood-type markers in bodily fluids such as semen. Gary is a “strong secretor” of blood Type O markers, the defense says.
• A bite mark found on Cofer’s breast. Investigators made a mold from the bite, and it showed the biter had a rotated lower tooth. Gary does not. He had dental work on his upper jaw while in prison, but not his lower teeth, the defense says.
• A shoe print found on an air-conditioner outside victim Ruth Schwob’s home, where the intruder apparently stood on the unit to climb into Schwob’s window. The print was a size 9½ and Gary wears a size 13½.

By law, Gary’s extraordinary motion for a new trial must be based on evidence that came to light after his 1986 trial, and that evidence cannot be “new” just because defense attorneys failed to exercise “due diligence” in discovering it earlier.

Such standards are based on the Georgia Supreme Court’s 1980 ruling in Timberlake v. State, in which the justices set criteria for evidence warranting a new trial.

Besides requiring the evidence be new and not overlooked by defense neglect, the justices said it must be so remarkable it likely would have affected the verdict; it cannot be merely “cumulative,” meaning it only adds to or repeats evidence presented at trial; it cannot just impeach the credibility of a trial witness; and if it is based on a witness’ testimony, that witness’ affidavit must be produced or its absence explained.

Jordan’s options are to grant or deny Gary a new trial, or order a new sentencing trial at which a another jury would review the case to decide whether Gary should be executed.

Born Sept. 24, 1950, in Columbus, Gary now is 66 years old. He remains on death row at the Georgia Diagnostic and Classification Prison in Jackson.

This story was originally published July 20, 2017 at 2:55 PM with the headline "Prosecutors push for ruling on ‘Stocking Strangler’ Carlton Gary’s new trial motion."