The state Board of Pardons and Paroles on Tuesday declined to spare condemned murderer Carlton Gary, but he still has a request for a stay of his scheduled Wednesday execution pending before the Georgia Supreme Court.
Gary, known as the "stocking strangler" for killing several elderly women in Columbus 30 years ago, is asking for a delay and the time to test DNA found on one of the victims . Gary’s lawyers say DNA test results could show Gary is not the man who terrified the southwest Georgia military town in 1977 and 1978.
“We have testable DNA,” Jack Martin, Gary’s lawyer, told the AJC on Tuesday. “There’s DNA that could exonerate someone who is about to be executed. What are they scared of if they are so certain [Gary is the murderer]?”
Gary is scheduled to die by lethal injection at 7 p.m. Wednesday at the Georgia Diagnostic and Classification Prison near Jackson.
Gary was condemned in 1986 for raping three women -- Florence Scheible, 89; Martha Thurmond, 69; and Kathleen Woodruff, 74 -- and then strangling them with their stockings. Prosecutors said he also sexually assaulted and attacked four other women from September 1977 to April 1978.
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His lawyers contend Gary was convicted on weak evidence.
They are relying on a 2003 state law that allows DNA testing if there is a reasonable probability that a different verdict would have been reached if DNA testing had been available at trial. DNA testing was not an option when Gary was tried.
“We’ve brought all this stuff up for years and years and years,” Martin said.
Martin said prosecutors had said semen evidence from the case no longer existed. But earlier this month, Martin said, he and Aimee Maxwell, executive director of the Georgia Innocence Project, found semen evidence collected from the victims stored in the property room of the Columbus Police Department.
“It’s been there since 1999, when the GBI lab shipped all that [evidence] there,” Martin said. “They had claimed for years and years that all this had been destroyed.”
Martin said testing the evidence would only delay Gary’s execution 30 to 60 days.
“It’s there to be tested,” Martin said.
Though DNA was not part of the prosecutor’s case against Gary, other evidence was offered.
One surviving victim said, seven years later, that she recognized Gary when she saw him on television. But initially she said she could not identify her attacker because the lights were off.
Fingerprint evidence put Gary at the homes of three women he was accused of killing. Gary said an accomplice sexually assaulted and killed the women.
Prosecutors also told jurors that in 1970 Gary pleaded guilty to robbing an elderly woman in Albany, N.Y., who had been raped and strangled. In that case, Gary also told police a friend committed the crime.
In 1977, after he was paroled, Gary was suspected of trying to strangle a Syracuse, N.Y., woman. She could not identify him, but a watch stolen from her home was traced to him.
Gary had returned to prison but escaped, fleeing to Columbus before the stocking strangler killings began.
At trial, Gary’s lawyer was denied funds to hire an expert to evaluate the state's evidence. According to trial testimony, there was no blood found in the semen recovered at crime scenes. At the time, a test for the secretion of blood into a defendant's bodily fluids was the most common evidentiary test in sexual assault cases.
Tests of semen recovered from the victims determined the killer was a weak secreter. But a test of Gary’s saliva showed he was a strong secreter.
Even so, GBI crime lab technician John Wegel testified that Gary could not be eliminated as a suspect because both he and the killer had type O blood. Wegel said Gary could be a weak secreter of blood into his semen and a strong secreter into his saliva.
During his appeal in federal court, Gary’s legal team received funds to hire a forensic expert, Roger Morrison of the Alabama Department of Forensic Science. Morrison testified the GBI failed to use a more reliable test of the blood evidence.