The courtroom drama was intense. On Aug. 15, 1986, Gertrude B. Miller, a 71-year-old white woman, testified about the night she was raped, beaten, and almost murdered by an intruder at her home in Columbus, Georgia, a prosperous city of 200,000 people south of Atlanta.
“I had gone sound asleep and it was then that I realized that someone was right there, on top of me… he turned me over on my back, and he pulled down my nightclothes… he raped me front and back, both, and he hit me on the head… Later on, when he was raping me, he turned the light on so he could see better, the light at the head of the bed.”
That meant, she went on, that she saw his face clearly. The Columbus district attorney, Bill Smith, asked Miller to look around the court and “state whether you recognize the person who attacked you that night.” She pointed to the defendant, an African-American man named Carlton Michael Gary. “That guy right there,” she said.
Gary was on trial as Columbus’ “stocking strangler,” a serial killer who murdered and raped seven elderly, white women in Columbus over eight terrifying months from September 1977 to April 1978. Miller’s testimony was the moment a guilty verdict began to seem inevitable. The first of the predator’s victims, she had been strangled by a ligature fashioned from her own stockings, and tied with a distinctive, self-tightening knot, as were those who died; unlike them, she had lost consciousness, but somehow, survived.
The defense attorney, August “Bud” Siemon, suggested that her memory, thanks to the passage of time, might not be reliable: The attack on Miller had taken place nearly seven years before the trial. When it came to his summation, Smith gave this short shrift.
“Instead of thinking, ‘Can she remember?’ ask yourselves, ‘Can she ever forget?’” he said. “Don’t you know that every night Mrs. Miller has laid her head on her pillow and closed her eyes to go to sleep, she has seen the face of this man? It’s burned into her memory, it’s forged into her memory. She can’t put it out of her mind.”
Gary, who is now 67, was convicted and sentenced to death for three of the subsequent rapes and murders, which were all virtually identical in their modus operandi, and all perpetrated within a small, all-white neighborhood: those of Martha Thurmond, Florence Scheible, and Kathleen Woodruff. Smith told the jury they should be in no doubt: All the attacks were the work of a single perpetrator, Gary, who had carried out eight rapes and seven murders, including the rape of Miller. The reason he had been charged with only three of the attacks was that it was only at these victims’ homes that police discovered his fingerprints.
This Thursday, March 15, unless he gets a stay, he will die by lethal injection at the Georgia state prison in Jackson. Yet if that does happen, his execution will not represent justice for Miller, who passed away many years ago. For it can be stated with what the law terms “scientific certainty” that Carlton Gary did not rape Gertrude Miller. According to DNA tests, the semen police recovered from her sheets and nightclothes after she was attacked came from someone else entirely. If Miller was raped by the stocking strangler, Gary is not that man.
However, the DNA evidence that Gary did not attack Miller is just one element of a huge volume of material that points to his innocence. I cannot pretend to be objective about this case. I began to look into it as a reporter in 1998, and two years later, when I secured a book deal, I also became the defense attorneys’ (unpaid) official investigator, reasoning that if I were to discover exculpatory evidence, it would be morally wrong not to share it with them. My book, The Big Eddy Club—named after the then all-white dining club to which five of the victims’ families and many of Columbus’ legal and law enforcement officials belonged—was published in 2007. Meanwhile, I have made many visits to Georgia from my home in Oxford, England, both to see Gary and to continue my investigations, and have written numerous articles.
For a long time, I was careful not to say that I thought Gary was innocent, only that he did not get a fair trial, and so deserved a new one. That is no longer my position, nor that of his lawyers, Jack Martin and Michael McIntyre, who are based in Atlanta. Their petition, filed last Friday with the only body which, just maybe, may now save his life, the Supreme Court, is unequivocal. The first question the court must answer, it states, is whether the Eighth (“cruel and unusual punishment”) and Fourteenth (“due process”) Amendments to the Constitution “prohibit the execution of an actually innocent defendant.”
The state has argued that because Gary was not formally convicted of raping Miller, the DNA test on the semen from the man who attacked her is irrelevant, and until now, the courts have bought that argument.
However, this should not have mattered, because there was a second DNA sample from semen recovered from the body of a woman Gary was convicted of raping and killing, retired teacher Thurmond, 69, who was raped, brutalized, and strangled on Oct. 24, 1977.
It is the fate of this sample which makes the case truly egregious. When the Thurmond semen slide was about to be tested at the Georgia Bureau of Investigation crime lab in 2010, someone—we have no idea who—contaminated it, rendering it forever useless, by smearing their own semen—described, bizarrely, in court documents as a “control sample”—over both the slide and the laboratory equipment, so swamping the precious DNA gathered from Thurmond’s body in 1977. There are only two possibilities: Either this was deliberate sabotage, or negligence so extraordinary that it beggars belief. (The one person who might have been able to shed further light on this, a scientist named Connie Pickens who discovered what had gone on, died four years ago.)
Hence the petition’s further question for the Supreme Court: “When a State provides a defendant under a death sentence the right to DNA testing of evidence that can prove that the defendant is innocent and then, in the process of testing, the State contaminates and destroys the DNA evidence, does this destruction constitute a violation of the Eighth and Fourteenth Amendments of the United States Constitution so as to bar a defendant’s execution?” This, the petition says, is a unique question, which the court has “never previously confronted.”
Suppression of Evidence
Then again, for many years, police and prosecutors maintained there were no DNA-testable samples at all. Way back in 1994, when the new science of “DNA fingerprinting” was just beginning to be used to exonerate criminal defendants, attorney Jeff Ertel, who was fighting Gary’s state court appeals, tried to discover whether there was potentially useful material. By then, Bill Smith had become a Superior Court judge, but his successor as Columbus DA, Doug Pullen, who had been Smith’s assistant at the 1986 trial, testified under oath at an evidentiary hearing that there was none—all the slides and swabs from the victims had been destroyed, he said, because they were thought to constitute a “bio-hazard.” There was, he added, a “policy” to destroy such samples.
This was, baldly, a lie. If there was such a policy, it was not followed, and for many years the samples sat in a box in the evidence room at the Columbus Police Department. There, thanks in part to my investigation, defense attorney Martin was finally able to inspect them a few weeks before Gary’s last execution date, Dec. 16, 2009. That time, he came within three-and-a half hours of being killed, before the Georgia Supreme Court granted a stay. He had already been “prepped” for the lethal injection gurney, a degrading procedure which, he told me later, had involved an anal cavity search: “They wanted to make sure I died feeling humiliated.” Having dodged the executioner on that occasion, he said, he walked back into his death row cellblock and “realized what it must be like to be Mick Jagger—the other inmates were hollering and clapping so much.”
That stay triggered a protracted process, which is ending only now. First, the prosecutors both in Columbus and in the Georgia attorney general’s office fought a losing legal battle to stop any DNA testing at all. Then, in January 2014, began a long series of hearings before Judge Frank Jordan in the Columbus courthouse where the trial had been held, on what was termed an “extraordinary motion for a new trial”—a last-ditch legal resort for prisoners whose ordinary appeals are over, but who seek to present fresh evidence.
There was much for the court to consider beside the Miller DNA test. For example—as the Supreme Court petition states—there was a set of footprints, left by the killer at one of the victim’s homes, after he climbed on to a dusty air conditioning unit to gain entrance via a window. The footprints—clear impressions made by a sneaker—were five sizes smaller than Gary’s size 14 feet. There was a bite mold made from a deep impression left in the breast of the final victim, Janet Cofer: The killer had apparently tried to bite off her nipple. The mold did not match Gary’s teeth, displaying a pattern of twists, gaps, and overcrowding that Gary—who at the time of the murders was modeling in TV commercials for a high-fashion clothing store—did not have.
The prosecutors maintained that Gary had left his fingerprints at the homes of the three victims of whose murders he was convicted. Yet it transpired that in 1979, after he was convicted of robbing fast-food restaurants in South Carolina, the detective who was then the head of the stocking stranglings “task force” had considered him as a possible suspect—as was any black person from Columbus arrested for any kind of crime in this period. After taking his prints to the police identification section, the officer found no match. (Gary only became a suspect again when he absconded from an open prison five years later, and headed back to Columbus. This brought him to the attention of another local detective, who claimed that back in 1977, he had sold a gun after stealing it in a burglary in the same neighborhood as the murders—although there was, in fact, no obvious connection between the killings and this theft.) Moreover, the standard Columbus police operating procedure in the 1970s was always to photograph fingerprints after they had been dusted at a crime scene, while they were still in situ, to prevent allegations that any match had been faked. There were no photos of Gary’s prints at the scenes of the three murders with which he was charged.
All of this had been concealed from the jury, along with statements to police by Miller. Soon after she was raped, she said her rapist had attacked her in darkness so complete she did not know whether he was black or white— not that he turned on the light. Later, after the arrest of a hapless man with learning difficulties named Jerome Livas, Miller said she was sure Livas raped her. Together with his confession to raping her and murdering the first two victims, Miller’s statement was quietly buried when the killings continued, although Livas was in custody. (He also gave an interview to a local reporter, confessing he had not merely perpetrated the stranglings, but the assassination of President McKinley, the kidnap of Charles Lindbergh’s baby, and the “Black Dahlia” slayings in California.)
Also hidden from the trial were scientific papers disclosed in 2000, that showed that, even absent DNA tests, it was highly unlikely that Gary killed Martha Thurmond. Using the technology then available, the police had established that the killer was a “non-secretor”—a relatively rare, genetically determined lifelong state that meant he did not secrete his blood group marker chemical into other bodily fluids, such as semen and saliva. Carlton Gary does—making it all the more outrageous that the DNA test which could have exonerated him beyond doubt of this murder was rendered impossible.
Hours to Go
However, the prosecutors did pull one rabbit out of their hat: a claim that the same lab that wrecked the Thurmond DNA sample did find a match between Gary and “vaginal washings” taken from another murder victim, Jean Dimenstein.
Here too, the truth is murky. Their claim was, supposedly, derived from swabs of Gary’s DNA that had been securely stored in a sealed envelope. When the defense attorneys asked to see them, the lawyers were told the envelope had mysteriously been opened, and the swabs had, unaccountably, disappeared. Could they have been used to contaminate the microscopic quantity of biological material taken from Dimenstein? In a lab where the destruction of the much bigger Thurmond semen sample took place, the defense attorneys say anything is possible.
In any event, Gary was not convicted or sentenced for Dimenstein’s rape and murder. Yet still the state has claimed the case against him is “overwhelming.” In fact, at this point, other than the items listed above, it consists of his alleged “confession”—a typed, unsigned document which was based on neither a tape recording, nor contemporaneous notes, but on the memory of a single detective who claimed he could remember, almost verbatim, what Gary had said over the course of two long nights of interrogation. Gary, who had no lawyer present when he was questioned, has always insisted it is a fabrication.
After the hearings, the Columbus court’s Judge Jordan took a long time to rule. When he did, on Sept. 1, 2017, he weighed each piece of fresh evidence according to a Georgia legal standard set down in a case known as Timberlake. This requires the defense to show that the evidence is a) newly discovered since the trial and b) could not reasonably have been adduced before the jury. Jordan decided the evidence did clear those hurdles. But it did not reach the final, requisite standard: If the jury had known about it, he decided, there was not a “reasonable probability” it would have reached a different verdict, or sentenced Gary to life, instead of death.
Martin and McIntyre appealed to the Georgia Supreme Court. Its final decision came back in January: It decided not to review the case at all. Hence the execution date.
Now it is up to the justices, who have, as of this writing, two days to spare Gary’s life. Jack Martin wound up his speech at the end of the hearings in Columbus by saying: “There is no way that a just society could execute this man.” By 7 p.m. Eastern time on Thursday, we will know whether the Supreme Court agrees.