Editor's note: Jack Martin issued the following article about his client, Carlton Gary, who is scheduled to be executed on Thursday. What follows is Georgia Attorney General Chris Carr's Feb. 23 summary of the Gary case.

'Compelling Evidence of Innocence'

Carlton Gary is scheduled to be executed this Thursday by Georgia, despite the fact that physical and scientific evidence developed long after his trial proves that he is likely innocent of the crimes for which he was sentenced to death, including DNA evidence that the only eyewitness identifying Gary at trial was mistaken in her identification. Despite this compelling evidence of innocence, the Georgia courts have refused to intervene.

Gary was charged with the murders of three elderly women in Columbus, Georgia, in late 1977 and early 1978. These attacks were three of a series of nine virtually identical rapes/murders of elderly women living alone in a discrete neighborhood in Columbus. This serial killer was characterized in the media as the “Columbus Stocking Strangler.” Law enforcement was at a loss to solve the crimes. One suspect, Jerome Livas, confessed to the crimes, supposedly recounting details about the crime scenes that only the perpetrator would know, but this “confession” was later determined to be false or fabricated by the police.

Gary was not arrested and charged with the crimes until seven years after the crimes, based upon alleged fingerprints from the crime scenes, which at first were determined not to match Gary and about which a former supervisor of the Latent Fingerprint Section of the FBI swore in an affidavit were suspiciously collected and were “borderline” at best. The State also claimed that Gary gave an unrecorded and unsigned “confession” that he was present at the crime scenes, in which he allegedly gave the same details only the perpetrator would know, just like Livas' false or fabricated confession.

But the most dramatic testimony offered by the state was from one of the victims who had survived the attack upon her by playing dead, Gertrude Miller, who at trial pointed at Gary as the person who had attacked her. The prosecutor thundered in closing that her identification was “burned into her memory, its forged into her memory, she can't put it out of her mind if she wants too.”

Fortunately, long after trial, DNA testing of semen stains on clothing Miller was wearing at the time of the attack upon her proved to a scientific certainty that these stains were from sperm and that the DNA from this sperm did not match Gary. Contrary to Miller's dramatic testimony at trial, someone other than Gary had attacked her in the same ritualistic and distinct pattern in all of the Columbus Stocking Strangler attacks.

Other hard physical evidence was discovered only long after trial exonerating Gary. A mold of a bite mark on the breast of one of the victims, never disclosed to the defense at trial, was examined by the most respected forensic odonatologist in Georgia, who concluded that the bite mark did not match Gary's teeth. A shoeprint at the point of entry at one of the attacks, never disclosed at trial, was a size 10 shoe. Gary's feet were examined by a forensic podiatrist who determined that Gary wears a 13 ½ size shoe and that there was no way that he could fit his foot into a size 10 shoe.

Finally, the test results of secretor/nonsecretor testing of semen stains found on or in the bodies of two of the victims were found to have come from a nonsecretor, while Gary was tested and determined to be a secretor. Approximately 80 percent of the population secretes their blood group substance into their body fluids, including saliva and semen, while 20 percent do not. Prior to the advent of DNA forensic testing, secretor testing was a key investigative tool in rape investigations. Since Gary is a secretor, and the attacker of the two victims was a nonsecretor, Gary was excluded. But, the defense was not provided any expert assistance at trial to show how this evidence exonerated Gary.

And, most incredibly of all, when slide samples of sperm on or in the body of one of the victims were discovered long after trial, even though the state had protested that they no longer existed, were sent to the State Crime Lab for testing, the lab recklessly contaminated the samples, thereby destroying the samples and making DNA analysis impossible. This was particularly disturbing because these samples came from one of the cases where secretor analysis had excluded Gary making certain a favorable DNA result. This reckless destruction of what would have certainly have been exonerating evidence is, in and of itself, sufficient to take the death penalty off the table.

Last-minute appeals to the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit and the Georgia Parole Board are pending, but unless some court or board takes action, a person who never got a fair trial and whose guilt has been seriously questioned by hard physical and scientific evidence suppressed by the state and not revealed until long after trial will be executed. That execution will be a stain on the state of Georgia, the judiciary and the parole board. It would just be one more example of how the death penalty is so fraught with error that it should be abolished.

Jack Martin, attorney for Carlton Gary

Attorney General's Summary of the Case of Carlton Michael Gary

Gary's Crimes (1977-1978)

The U.S. District Court summarized the facts of the crime as follows:

Between the fall of 1977 and spring of 1978, terror gripped the historic Wynnton neighborhood in Columbus, Georgia. Targeting elderly white women, an assailant sexually assaulted nine women, killing seven of them and leaving stockings around their necks as his calling card. Labeled the “stocking strangler” by the local news media, the assailant suddenly ceased his activities in the Wynnton area in 1978 and eluded authorities for six years.

These crimes remained unsolved until 1984, when a pistol that was stolen from a home in the Wynnton area in October 1977 was linked to [Gary]. [Gary] was arrested on May 3, 1984, for this burglary. After acknowledging his Miranda rights, [Gary] confessed that he was present at the burglary and that he was either present at, or had knowledge of, eight of the nine 1977-78 Wynnton area rapes and murders. [Gary] stated that he burglarized these women's homes, while an individual named Malvin A. Crittenden committed the rapes and murders. The authorities found no corroborating evidence linking Crittenden to the crimes.

[Gary]'s fingerprints were ultimately found to match the latent prints found at four of the crime scenes. Blood evidence and hair samples taken from the crime scenes were inconclusive—they neither established [Gary] as the perpetrator nor excluded [Gary].

An investigation into [Gary]'s background revealed his connection to similar crimes in the past. Specifically, on April 14, 1970, the body of 85-year-old Nellie Farmer was found in her residence in Albany, New York. She had been raped and strangled, and her body was covered. A fingerprint taken at the scene matched [Gary's]. When arrested and confronted with this evidence, [Gary] claimed that he was at the crime scene, but an individual by the name of John Lee Mitchell actually raped and killed Farmer. Mitchell was acquitted of these charges.

On Jan. 2, 1977, 55-year-old Jean Frost was attacked and raped during a burglary of her home in Syracuse, New York. One of the items taken during the burglary was her watch. When [Gary] was taken into custody two days later, he had the watch in his pocket. [Gary] confessed to being the “lookout” for the Frost burglary. He claimed that an individual named Dudley Harris committed the attack and rape. Harris was not convicted for the crimes.

Regarding the Columbus “stocking strangler” crimes, [Gary] was indicted for raping, murdering, and burglarizing the homes of three of the nine victims—Ruth Schieble, Martha Thurmond and Kathleen Woodruff. At trial, the prosecution introduced evidence of the attacks on the other “stocking strangler” victims, claiming they showed a similar pattern and were also committed by [Gary]. The evidence presented by the prosecution to show a similar pattern included the following: All of the victims were elderly white women between the ages of 55 and 89. Each of the victims lived alone. In each crime, the assailant broke into the woman's home and burglarized her residence. With the exception of one, all of the crimes happened at night. All of the elderly women were sexually assaulted. All of the attacks involved ligature strangulation, usually with the victim's stockings or pantyhose. With the exception of only one attack, all of the attacks occurred in the Wynnton area of Columbus, Georgia. Every deceased victim had been either partially or totally covered after the attack.

The evidence at trial showed that Schieble had been raped, beaten and strangled to death with a stocking on Oct. 21, 1977. She was 89 years old at the time, legally blind and could walk only with the aid of a walker. Schieble's son and his wife discovered her lifeless, covered body on Oct. 21, 1977.

Martha Thurmond's body was discovered on Oct. 25, 1977. Her body was covered by a pillow, blankets and sheets. The evidence showed that Thurmond had been sexually assaulted, beaten and strangled with a stocking.

On Dec. 28, 1977, the body of 74-year-old Kathleen Woodruff was discovered partially covered and lying on her bed. Woodruff had been raped and strangled with a scarf.

The similar crimes evidence showed that Gertrude Miller was attacked on Sept. 11, 1977. She had been raped and severely beaten. Knotted stockings, similar to the ones used to strangle the other victims, were found at the scene. Miller survived the attack and identified [Gary] as her assailant.

The body of 58-year-old Mary “Fern” Jackson was discovered on Sept. 16, 1977. Her body was covered, and she had been beaten and raped. Jackson was strangled to death with a stocking and a sash from a dressing gown.

Jean Dimenstein, 71, was raped and strangled to death with a stocking in her home on Sept. 24, 1977. Her body was covered with sheets and a pillow.

On Feb. 11, 1978, police responded to a call and found Ruth Schwob sitting on the edge of her bed with a stocking tied around her neck. Schwob never identified [Gary] as her assailant. Although she survived the Feb. 11, 1978, assault, she died before [Gary] was charged and tried. On Feb. 12, 1978, the body of 78-year-old Mildred Borom was found lying on her back in a hallway of her home with her face covered. She had been strangled with a Venetian blind cord. She also had been raped.

On April 19, 1978, 61-year-old Janet Cofer's body was found lying in her bed covered with linen and with a pillow over her face. She had been raped and strangled with a stocking. Although Cofer did not reside in the Wynnton area of Columbus, as had all of the other victims, she had attended choir practice at the Wynnton Methodist Church on the evening of her murder.

Gary v. Schofield, 336 F.Supp.2d 1337, 1341-1343 (M.D. Ga. 2004) (internal citations and footnotes omitted).

The Trial (1984-1986)

Gary was indicted in the Superior Court of Muscogee County, Georgia, on May 4, 1984, for three counts of malice murder, three counts of rape and three counts of burglary. Gary was convicted as charged in the indictment and was sentenced to death on all three counts of murder on Aug. 27, 1986. Thereafter, Gary filed a motion for new trial, which was denied on Oct. 18, 1986.

The Remand Proceedings (1987-1989)

Gary appealed his convictions and sentences to the Georgia Supreme Court. On June 26, 1987, the justices remanded the case to the trial court for a hearing on whether Gary was denied the effective assistance of counsel. Gary was represented by new counsel during the remand proceedings, and a hearing was held on Nov. 12 and 16, 1987. On June 12, 1989, the trial court held that Gary “actively rejected the assistance of counsel appointed by this court” and that “as to those issues addressed during the hearing on remand that the defendant knowingly, intelligently and voluntarily waived those issues after having been repeatedly advised by the court that his conduct would amount to such a waiver.” (Trial Court Remand Order, p. 27).

The Direct Appeal (1990-1991)

Gary's case was again appealed to the Georgia Supreme Court, which affirmed Gary's convictions and sentences on March 6, 1990. Gary v. State, 260 Ga. 38 (1990). The U.S. Supreme Court denied Gary's request to appeal on Oct. 1, 1990. Gary v. Georgia, 498 U.S. 881 (1990), rehearing denied, Gary v. Georgia, 498 U.S. 1043 (1991).

State Habeas Corpus Proceedings (1991-1997)

Gary filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, on Jan. 11, 1991. An evidentiary hearing was held on Jan. 30-31, 1995. On Nov. 13, 1995, the state habeas corpus court entered an order denying Gary state habeas relief. The Georgia Supreme Court denied Gary's appeal on Oct. 7, 1996. The U.S. Supreme Court denied Gary's request to appeal on May 27, 1997. Gary v. Turpin, 520 U.S. 1244 (1997), rehearing denied Gary v. Turpin, 521 U.S. 1137 (1997).

Federal Habeas Corpus Proceedings (1997-2009)

Gary filed a petition for a writ of habeas corpus in the U.S. District Court for the Middle District of Georgia on Nov. 18, 1997. The district court conducted evidentiary hearings on issues raised by Gary regarding serological evidence and a bite mark exemplar. On Sept. 28, 2004, the district court denied Gary federal habeas relief. Gary v. Hall, 336 F. Supp. 2d 1337 (2004). After federal habeas relief was denied, but while Gary's case was on appeal to the U.S. Court of Appeals for the Eleventh Circuit, the coroner of Muscogee County located the missing bite mark exemplar. As a result, Gary's case was remanded to the district court for further proceedings on the bite mark exemplar. On May 30, 2007, following an evidentiary hearing, the district court reaffirmed its earlier decision denying Gary federal habeas relief. Gary v. Schofield, 493 F. Supp. 2d 1255 (2007). The Eleventh Circuit affirmed the district court's denial of relief on Feb. 12, 2009. Gary v. Hall, 558 F.3d 1229 (11th Cir. 2009). The U.S. Supreme Court denied Gary's request to appeal on Nov. 30, 2009. Gary v. Hall, 558 U.S. 1052 (2009).

Extraordinary Motion for New Trial (2009-2018)

Gary's execution was originally set for Dec. 16, 2009. On Dec. 7, 2009, after 31 years in prison and with his execution nine days away, Gary sought post-conviction DNA testing pursuant to O.C.G.A. § 5-5-41. The Georgia Supreme Court entered an order on Dec. 16, 2009, remanding the case to the trial court to determine whether Gary was entitled to DNA testing. Extensive testing was performed during the extraordinary motion for new trial proceedings, which revealed a positive DNA match between Gary and one of the victims, Jean Dimenstein. In addition to the extensive testing, three evidentiary hearings were held in the trial court. On Sept. 1, 2017, the trial court denied Gary's extraordinary motion for new trial. Gary's appeal to the Georgia Supreme Court was denied on Dec. 1, 2017, and his motion for reconsideration was denied on Jan. 16, 2018.