Petition for Writ of Certiorari — Carlton Gary, Petitioner v. Georgia
Supreme Court briefMar 9, 2018
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DEATH PENALTY CASE
UNDER WARRANT
EXECUTION SCHEDULED FOR MARCH 15, 2018
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2017
CARLTON GARY
Petitioner,
v.
STATE OF GEORGIA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF GEORGIA
JOHN R. MARTIN*
Georgia Bar No. 473325
44 Broad Street,
Suite 202
Atlanta, Georgia 30303
(tel)404-522-0400
(fax)404-223-6467
jack@martinbroslaw.com
MICHAEL KENNEDY McINTYRE
Georgia Bar No. 494075
965 Virginia Avenue, N.E.
Atlanta, Georgia 30306
(tel)404-879-1515
(fax)404-879-0005
mkm@georgiapostconviction.com
Counsel for Carlton Gary
*COUNSEL OF RECORD
QUESTIONS PRESENTED
This
Petition
a
final
Order
Court of Georgia dated January 16,
2018.
The due date for
Petition
is
Georgia
has
arises
from
April
16,
set
execution date
Supreme
this
fact,
the
State
of
Mr.
Gary
for
March
15,
no
fault
of
Mr.
Gary,
court.
Those
claims
include the exoneration of Mr. Gary through DNA testing,
as well
2018.
The
claims
have
never
been
as
the
Despite
the
this
an
2018.
by
raised herein,
reviewed
destruction
of
which also would have
perfectly positioned
by
for
due
any
to
federal
addi tional
DNA
exonerated Mr.
to
allow
this
evidence
Gary.
Court
Mr.
to
by
the
Gary's
State,
case
review Mr.
is
Gary's
claims de novo and to answer important constitutional questions
left unanswered by previous
the
execution of
an
decisions
innocent
of
defendant
this
and
Court
to
concerning
answer
a
unique
question never previously confronted by this Court involving the
State's destruction of evidence in a death penalty case.
r.
Do the Eighth and Fourteenth Amendments of the United
States
Constitution
prohibit
actually
innocent
defendant,
innocence
is based on physical evidence of
including DNA evidence,
trial?
not
the
execution
where
available
the
at
of
case
an
for
innocence,
the
time
of
II.
If
such
execution
an
is
unconstitutional,
what
standard should govern the determination of whether a
defendant
is
innocent of the offense
for which he
is
to be executed?
III. 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,
process
of
testing,
destroys
the
constitute
a
DNA
the
State
evidence,
violation
of
the
does
in the
contaminates
this
Eighth
and
destruction
and
Fourteenth
Amendments of the United States Constitution so as to
bar
a
defendant's
execution,
especially
when
prior
secretor testing indicated that the DNA resul ts would
exonerate the defendant?
IV.
Does
the
death
Constitution
executing
the
penalty
because
of
innocent
violate
an
which
evolving standards of decency?
11
the
United
unacceptable
is
contrary
States
risk
of
to
the
LIST OF PARTIES
The
caption
fully
identifies
Petition.
111
each of
the
parties
to
this
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED......................................
i
LIST OF PARTIES..........................................
iii
TABLE OF CONTENTS........................................
iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vi
CITATIONS TO OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
CONSTITUTIONAL PROVISIONS INVOLVED.......................
2
STATUTORY PROVISIONS INVOLVED..... ..... ............ ... ...
2
I. STATEMENT OF THE CASE.................................
5
A. INTRODUCTION.....................................
5
1. This Petition represents the first federal
review of the Petitioner's constitutional claims
5
2. A death sentence resulting from representation
by uncompensated counsel and no funds for expert
assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
3. The State's theory of prosecution: there was
only one Columbus Stocking Strangler. . . . . . . . . . .
6
4. Based upon recent DNA testing Mr. Gary has
now been excluded as Ms. Miller's attacker.....
7
5. Additional DNA testing would have exonerated
Mr. Gary with respect to another attack, but the
State destroyed the DNA evidence...............
7
B. COURSE OF PROCEEDINGS. ......... ... ..... ..........
8
C. STATEMENT OF FACTS...............................
10
IV
1. The State's theory of prosecution...........
10
2. The State's evidence at trial...............
12
3. New DNA evidence which exonerates Mr. Gary
and disproves Ms. Miller's trial testimony.....
13
4. Exonerating physical evidence which was
disclosed to Mr. Gary after his t r i a l . . . . . . . . . .
14
a. Impoverished volunteer attorney and not
one cent for experts or for investigation.
14
b. The exonerating secretor evidence .. ....
15
c. The exonerating bite mark evidence .....
17
d. The exonerating shoeprint evidence .. ...
17
The Destruction of DNA Evidence . . . . . . . . . . .
18
II. REASONS FOR GRANTING THE WRIT........................
20
5.
A. TO EXECUTE MR. GARY WOULD VIOLATE THE CONSTITUTION
GIVEN THE COMPELLING EVIDENCE OF HIS INNOCENCE......
20
B. TO EXECUTE MR. GARY WOULD VIOLATE THE CONSTITUTION
GIVEN THE STATE'S DESTRUCTION OF DNA EVIDENCE.......
24
C. THE DEATH PENALTY IS UNCONSTITUTIONA.L BECAUSE OF
THE UNACCEPTABLE RISK OF EXECUTING THE INNOCENT.....
27
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
v
TABLE OF AUTHORITIES
CASES
PAGE
Arizona v. Youngblood,
488 U.S.
51
(1988) . . . . . . . . . . . . . . . . 24,25,26
California v. Trombetta, 467 U.S. 479
Ford v. Wainwright, 477 U.S. 399
Gary v. Georgia, 498 U.S. 881
~_ary
(1984).............
(1986) . . . . . . . . . . . . . . . . . .
498 U.S.
26
(1990)
8
v. Hall, 558 F.3d 1229 (11 th Cir. 2009) . . . . . . . . . . . . . .
9
v. Hall, 558 U.S. 1052 (2009) . . . . . . . . . . . . . . . . . . . . . . .
9
v. Schofield, 336 F. Supp. 2d 1337 (M.D.Ga 2004) . .....
8
v. State, 260 Ga. 38 (1990) . . . . . . . . . . . . . . . . . . . . . . . . .
8
Herrera v. Collins,
House v.
B~,ll,
506 U.S. 390
547 U.S. 518
Illinois v. Fisher,
(1990) i
(1993) . . . . . . . . . . . . . . . . . . 21,22,23
(2006).......................
540 U.S. 544
Kennedy v. Loui?iana,
994
25,26
(2004) ..... . . . . . . . . . . . .
24
(2008)...............
22
513 U.S. 298
(1995).... . . . . . . . . . . . . . . . . .
21
356 U. S. 86
( 1958) . . . . . . . . . . . . . . . . . . . . . .
27
Woodson v. North Carolina, 428 U.S. 280(1976)...........
26
?chlup v.
D~lo,
v . Dulles,
554 U.S. 407
21,23
STATUTES:
28 U.S.C. §1257(a)......................................
2
OFFICIAL CODE OF GEORGIA:
O.C.G.A.
§ 5-5-41(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
O.C.G.A. § 17-5-56......................................
VI
2,9,19,25
3,25
RULES
Supreme Court Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23,24,26,27
OTHER MATERIALS:
A Survey of Federal and State Courts'
Approaches to a Constitutional Right of Actual .Innocence:
Is There a Need for a State Constitutional Right in New
York in the Aftermath of CPL § 440.10(G-l)?, 76 Albany
John M.
Leventhal,
Law Review,
1453
(2013).................................
21
Old Blood, Bad Blood, and Youngblood: Due
Process, Lost Evidence, and the Limits of Bad Faith, 86
Norman C. Bay,
Wash. U.
(2008).............................
26
The Youngblood Success Stories:
Overcoming the "Bad Faith" Destruction of Evidence
Standard, 109 W. Va. L. Rev. 421 (2006-2007) . . . . . . . . . . . .
26
Teresa N.
L. Rev.
241
Chen,
Vll
DEATH PENALTY CASE
UNDER WARRANT
EXECUTION SCHEDULED FOR MARCH 15, 2018
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2017
CARLTON GARY
Petitioner,
v.
State of Georgia,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF GEORGIA
--------Mr.
Carlton
Gary
(hereinafter,
"Petitioner"
or
Mr.
Gary)
respectfully prays that a Writ of Certiorari issue to review the
judgment of the Supreme Court of Georgia.
CITATIONS TO OPINION BELOW
The
decision
of
the
Superior
Court
of
Muscogee
County,
Georgia denying Petitioners'
Extraordinary Motion for New Trial
or
New
in
the
Alternative
discovered evidence,
a
Sentencing,
is not reported.
based
upon
newly
A copy of this decision,
titled "Order on Petitioner's Extraordinary Motion for New Trial
1
or
in
the
Exhibi t
"A"
Alternative
hereto.
for
The
a
one
New
Sentencing,"
sentence
decision
is
attached
of
the
as
Supreme
Court of Georgia denying a discretionary appeal is not reported
but
is attached as
Exhibit
"B"
hereto and the decision of the
Supreme Court of Georgia denying reconsideration is attached as
Exhibit "c" hereto.
JURISDICTION
This Court has jurisdiction to consider this case by way of
a
writ
of
certiorari,
pursuant
to
28
U.S.C.
§1257(a).
The
decision of the Supreme Court of Georgia was entered on December
1, 2017 and rehearing was denied on January 16, 2018.
CONSTITUTIONAL PROVISIONS INVOLVED
I.
Eighth
which
Amendment
provides
required,
nor
to
that
the
United
States
"[eJxcessive
excessive
fines
bail
imposed,
Constitution
shall
nor
not
be
cruel
and
unusual punishment inflicted."
II.
Fourteenth Amendment to the United States Constitution
which
provides
person
of
"[nJor
life,
shall
liberty
any
or
state
deprive
any
property,
without
due
process of law."
STATUTORY PROVISIONS INVOLVED
I .
0 . C. G.A.
§ 5 - 5 - 4 1 (c) (1)
provisions
of
section,
person
a
whie h p rov ide s
subsections
(a)
convicted
2
of
" Sub j e c t
and
(b)
of
a
felony
t o t he
this
may
Code
file
a
written motion before the trial court that entered the
judgement
of
performance
conviction
of
in
forensic
his
or
her
case
deoxyribonucleic
for
acid
the
(DNA)
testing."
II.
D.C.G.A.
§17-5-56, which provides "Except as otherwise
provided in Code Section 17-5-55,
governmental
2003,
physical
not
evidence
limited
prosecuting
entities
in a
to,
a
collected
contains
biological
limited
to,
in
possession
criminal
law
attorney,
evidence
on or after May 27,
enforcement
shall
at
case,
the
maintain
time
of
material,
stains,
fluids,
of
any
including,
but
agency
a
any
the
physical
crime
that
but
not
samples
that
including,
or
hair
or
relate to the identity of the perpetrator of the crime
as
provided in this
collected
directly
reference materials
purpose
of
drug
Code
section.
from
any
for
or
Biological
person
use
as
testing or collected for
the
alcohol
testing
for
samples
shall
not
be
preserved.
(b)
is imposed,
the evidence shall be maintained until the
In a case in which the death penal ty
sentence in the case has been carried out. Evidence in
all
felony
including,
cases
that
contains
but not limited to,
3
biological
material,
stains fluids,
or hair
samples that relate to. the identity of the perpetrator
of
the
time
crime
that
sentence
shall
the
in
the
be
crime
maintained
remains
case
is
last."
4
for
the
period
of
unsolved
or
until
the
completed,
whichever
occurs
I. STATEMENT OF THE CASE
A. INTRODUCTION
1. This Petition represents the first federal review of the
Petitioner's constitutional claims
Mr.
Gary was
Columbus,
tried,
convicted
Georgia in 1986.
this
Petition,
New
Trial
however,
which
consti tutional
was
The
arose
and
by a
to
death
in
constitutional claims raised in
from an Extraordinary Motion for
decided
on
September
2017.
1,
claims have been reviewed by a
Court and the Supreme Court of Georgia.
Petitioner,
sentenced
These
Georgia Superior
Due to no fault of the
these constitutional claims have never been reviewed
federal
court.
and possibly only,
Review by this Court represents the first,
federal
review of
the consti tutional
claims
in the Petitioner's case.
2.
A death sentence
resulting
from representation
uncompensated counsel and no funds for expert assistance
Mr.
Gary
is
under
a
sentence
of
death
as
eight week trial which took place in Columbus,
In proving Mr.
this
very
Gary's guil t
complex
trial
experts prior to trial
serologist,
and
a
of
a
Georgia in 1986.
in sentencing him to death in
the
State
relied
and at
trial,
including a
a forensic dentist,
resul t
by
upon
a
number
of
hypnotist,
a
a fingerprint expert, a hair and
fiber expert, numerous doctors, and many investigators.
5
Mr.
Gary
was
represented
by
an
impoverished,
volunteer
attorney who was not paid one cent for his representation of Mr.
Gary and was not provided with one cent for expert assistance,
or for investigation, prior to or during Mr. Gary's trial.
3. The State I s theory
Columbus Stocking Strangler
was
there
was
only
one
an African-American man,
a
serial
killer,
Strangler",
which
was
he
State
who
distinctive manner,
in
the
media
as
commi t ted
the
three
rape/murders
and
All
asserted
and 1978,
portrayed
charged
uncharged attacks.
1977
prosecution:
The State contended that Mr. Gary,
Stocking
The
of
of
the
convicted,
the
victims
attacks
as
well
were
were
the
as
"Columbus
for
five
other
older whi te
women.
committed
in
a
highly
during a relatively short period of time in
in a
single neighborhood
in Columbus,
Georgia,
making evidence of these uncharged attacks admissible as
"modus
operandi" evidence to prove Mr. Gary's guilt and sentence him to
death.
The State's key witness at trial was the only surviving
victim of all of these attacks,
Ms.
Gertrude Miller. Ms. Miller
dramatically identified Mr. Gary in court as the individual who
attacked and raped her.
In relying upon Ms.
witness
Mr.
Stocking
to prove
that
Strangler,
argument that Mr.
the
Gary was
prosecutor
Gary's face
is
6
the
Miller as their key
one and only Columbus
proclaimed
in
his
closing
"burned into her memory,
it's
forged into her memory,
she can't put it out of her mind." As we
now know, DNA proves that Ms. Miller was wrong.
4 • Based upon recent DNA testing
excluded as Ms. Miller's attacker
Based upon proceedings
concluded on September I,
Mr.
Gary
has
now
in a Georgia Superior Court,
2017,
been
which
we now know from DNA testing of
semen stains on Ms. Miller's clothing that Ms. Miller was wrong
in
her
identification
of
Mr.
Gary
and
that,
contrary
to
the
State's theory, Mr. Gary is not the Columbus Stocking Strangler.
This
fact,
Strangler,
proving that Mr.
as
will
be
Gary is not
described
below,
the Columbus
was
consistent
Stocking
wi th
a
significant amount of exonerating physical evidence. Once again,
due to no fault of Mr. Gary,
the fact that Mr. Gary is innocent
of the attack on Ms. Miller was only recently discovered and has
never been reviewed by any federal court.
5. Addi tional DNA testing
with respect to another attack,
evidence
Mr.
Ms.
would have exonerated Mr. Gary
but the State destroyed the DNA
Gary was charged and convicted for the rape/murder of
Martha
Thurmond.
The
State
had
long
represented
that
biological evidence no longer existed with respect to the attack
on Ms.
Thurmond.
However,
during
the
recent
proceedings
in
a
Georgia Superior Court, Mr. Gary was able to obtain glass slides
of semen found in and on the body of Ms.
described in Section I(C) (5),
Thurmond.
For reasons
testing of these slides would have
7
certainly exonerated Mr.
Gary with respect to the attack on Ms.
Thurmond.
Incredibly,
however,
which was
tasked wi th
conducting
contaminated
and
destroyed
inexcusable conduct in this
Gary the
opportunity to
the
State's
Crime
Laboratory,
the
DNA testing,
inexcusably
DNA
evidence.
this
Georgia
The
State's
life or death situation denied Mr.
utilize DNA evidence which would have
certainly exonerated him.
Gary,
the
Once
again,
inexcusable
due
conduct,
to
no
which
fault
only
of
Mr.
recently
occurred, has never been reviewed by any federal court.
B. COURSE OF PROCEEDINGS
On
August
26,
Superior
Court
of
rape and burglary.
1986,
Petitioner
Muscogee
County,
was
Georgia
The victims were Ms.
convicted
in
of
murder,
malice
Florence Scheible,
the
Ms.
Martha Thurmond and Ms. Kathleen Woodruff. The offenses occurred
during a brief period in late 1977 and early 1978. The day after
being convicted,
on August 27,
1986,
Petitioner was sentenced to
death on the malice murder convictions.
Petitioner's convictions and sentences were affirmed by the
Supreme
Court
of
Georgia,
a
Petition
for
certiorari to this Court was denied.
Gary v.
?tate,
(1990);
881
Gary
v.
Georgia,
and
498
U.S.
(1990);
a
498
(1990). State habeas corpus proceedings were pursued,
federal
habeas
corpus
proceedings,
8
to
no
avail.
writ
of
260 Ga.
38
U.S.
994
as well as
Gary
v.
Schofield,
336 F.Supp.2d 1337
(M.D.Ga 2004);
v.
Hall,
558
F.3d 1229 (11 th Cir. 2009); Gary v. Hall, 558 U.S. 1052 (2009).
After the denial of his federal habeas corpus proceedings,
an
execution
window
was
2009.
Clemency
December
23,
Board
Pardons
of
Petitioner
had
and
filed
set
between
was
Paroles
on
December
denied
on
by
December
December
7,
16,
2009
and
the
Georgia
15,
2009.
However,
a
Motion
for
2009,
State
the
Performance of Forensic Deoxyribonucleic Actd Testing,
pursuant
to
2003
and
testing
of
which,
depending
on
a
trial
new
O.C.G.A.
which
gave
relevant
the
§5-5-41 (c),
a
convicted
evidence
resul ts,
which
prisoner
never
could
was
not
the
previously
serve
as
a
enacted until
right
to
tested
basi s
for
DNA
new
or
sentencing as newly discovered evidence under Georgia procedures
for an extraordinary motion for new trial.
41.
The
Motion
was
denied
was
County.
This
denial
Georgia,
which
on
by
the
appealed
December
16,
See,
O.C.G.A.
Superior
Court
to
Supreme
2009,
the
on
the
very
of
§ 5-5-
Muscogee
Court
eve
of
of
Mr.
Gary's execution,
reversed the decision of the Superior Court of
Muscogee County,
stayed his execution and ordered the Superior
Court to conduct DNA testing.
On July 9,
2012,
within the deadline of a scheduling order
entered by the Superior Court of Muscogee County,
filed
his
Extraordinary
Motion
9
for
New
the Petitioner
Trial
or
in
the
Al ternati ve
for New Sentencing.
Evidentiary hearings
were
by the Superior Court of Muscogee County on February 28,
February
5
and
6,
2016,
September 1, 2017,
and
on
January
12
and
13,
held
2014,
2017.
On
the Superior Court of Muscogee County entered
an Order which denied Petitioner's Extraordinary Motion for New
Trial or in the Alternative New Sentencing.
Petitioner
Court
of
sought
Georgia
a
and,
discretionary
wi thout
appeal
to
the
Supreme
comment,
the
Supreme
Court
of
Georgia denied Petitioner's discretionary appeal on December 1,
2017.
The Supreme Court of Georgia denied Petitioner's
for
reconsideration on January 16,
2018.
the
Superior
Gary's
between
March
Court
15,
authorized
2018
and
Mr.
March
22,
request
On February 23,
execution
2018.
The
to
2018,
occur
Petitioner's
execution is currently set for March 15, 2018.
C. STATEMENT OF FACTS
1. The State's theory of prosecution
Although Mr. Gary was convicted and sentenced to death for
the three murders/rapes for which he was charged,
Ms.
Scheible
substantial
and
Ms.
evidence
Woodruff,
regarding
five
the
State
other
rapes
Ms.
Thurmond,
also
presented
or
murders
of
older white women living alone in the same Columbus neighborhood
during
the
same
time
period,
Cofer,
Ms.
Borom and Ms.
Ms.
Schwob,
10
Miller,
Ms.
Dimenstein,
as modus operandi evidence.
Ms.
It
was the State's consistent claim and sole theory of prosecution,
expressed from opening statement,
today,
that
Strangler,
Gary
Mr.
was
who over a
the
throughout the trial and still
one
and
period of months
only
Columbus
Stocking
in late 1977 and early
1978, committed the charged offenses for which he was convicted,
as well as the other uncharged offenses,
with a signature modus
operandi,
including strangling his victims.
that
stark similari ty of
this
evidence
regarding
identity
of
the
these
Columbus
the
The State contended
uncharged offenses made
uncharged
offenses
Stocking
Strangler,
proof
who
of
the
the
the
State
contended was Mr. Gary.
There
were
10
common
characteristics
offenses, both charged and uncharged.
in
the
charged
and
uncharged
victims were white women;
over;
(3)
all
of
the
(2)
to
all
of
the
The striking similarities
offenses
were
(1)
all
of
the
all of the victims were age 55 and
victims
were
strangled;
(4)
all
of
(5)
all of
victims were attacked within a span of seven months;
the offenses took place in the victims'
homes;
(6)
the
forced entry
occurred in all of the attacks except Ms. Scheible's because her
door was open;
(8)
all
of
Ms.
Schwab;
(7)
all of the rape/murder victims lived alone;
the victims,
(9)
when discovered,
all of the victims,
11
were
except Ms.
covered,
Cofer ,
except
lived in
the Wynnton Road area;
and
(10)
all of the offenses,
excluding
Ms. Scheible's attack, occurred at night.
2. The Statels evidence at trial
The
case
State's
was
built
three
on
pillars:
(1 )
Questionable fingerprint evidence not originally matched to Mr.
Gary
and
about
which
a
former
supervisor
with
the
Federal
Bureaus of Investigation Latent Fingerprint Section expressed in
an
affidavit
sufficient
his
points
"grave
of
"borderline" at best;
Columbus
scenes
Police
but
comparison
not
that
he
committed
the
unrecorded and unsigned,
corroborating
details
suspect which was
Police
Department;
rendering
any
the
lack
of
identifications
(2) A claimed admission by Mr. Gary to the
Department
had
including
concerns,"
in
testimony of Ms. Miller,
present
at
rape/murders,
the
crime
which
was
and which suspiciously tracked claimed
a
determined
and
was
(3)
previous
to be
by
another
fabricated by the
Columbus
Finally,
"confession"
and
most
important,
the
who survived the attack on her and was
the only surviving victim at the time of the trial.
She was the
State's key witness. She identified Mr. Gary in the courtroom as
her
attacker,
and
delivered
the
entire trial.
12
most
dramatic
moment
of
the
3. New DNA evidence which exonerates Mr. Gary and disproves
Ms. Miller1s trial testimony
New DNA evidence,
proves
to
a
testimony
was
not available at the time of trial,
scientific
certainty
wrong
that
and
that
Ms.
someone
other
now
Miller's
trial
than
Gary
Mr.
committed the attack on her which the State contended was one of
the highly identical attacks of the Columbus Stocking Strangler.
DNA testing was
performed on Ms.
underclothing and white slip,
Miller's
sleeping gown,
collected by the Columbus
Police
Department at the crime scene. The rape kit in her case had long
been lost.
This
DNA
testing
was
performed
laboratory
in Virginia,
the
Bode
procedures
that
not
available
Laboratory.
The
certainty that
were
Bode
the
by
reputable
Technology
to
Laboratory testing
stains
a
on Ms.
Laboratory,
the
found
Miller's
forensic
Georgia
to
a
using
Crime
scientific
clothing were
semen
which did not match Mr. Gary's DNA profile.
The significance of this development cannot be overstated.
It was Ms. Miller who was the only surviving victim at the time
of trial and it was Ms.
Miller who identified Mr.
attacker.
it was Ms.
the
Additionally,
prosecutor
relied
to
argue
Miller's
in
Gary as her
testimony on which
closing
argument
that
Ms.
Miller would never forget Mr. Gary's face,
or as the prosecutor
stated:
its
it
is
"burned
into
her
13
memory,
forged
into
her
memory,
she can't put it out of her mind if she wants to".
we
know,
based upon
was
wrong.
Someone
irrefutable DNA evidence,
other
than Mr.
Gary was
that
her
Ms.
Now
Miller
attacker,
and
this attack fit all of the similarities of the modus operandi of
the Columbus Stocking Strangler.
This
incorrect
DNA
evidence
not
only
identification by Ms.
consistent
with
the
refuted
the
dramatic
but
Miller,
but
was
also
entirely
amount
of
physical
evidence
significant
which exonerates Mr. Gary.
4. Exonerating physical evidence which was disclosed to Mr.
Gary after his trial
a. Impoverished volunteer
for experts or for investigation
Prior
to
represented
volunteer
trial,
in
and
this
very
attorney,
who
representation of
Mr.
during
Gary
trial,
assistance
Mr.
or
for
at
the
attorney
time
complex
was
not
one
trial,
Mr.
Gary was
by
paid
one
cent
for
his
Additionally,
prior
to
trial,
and
not
one
not
provided
investigation
by
the
an
cent
case
was
Gary.
of
and
impoverished
cent
for
Superior
expert
Court
of
Muscogee County.
During postconviction proceedings in Mr.
the venue
County,
funds
of
his
case was
not
the
Gary's case,
Superior Court
when
of Muscogee
Mr. Gary was provided with compensated counsel and with
for expert assistance.
We now know there existed at
14
the
time
of
trial
a
significant
evidence
which
would
have
amount
proven
of
that
exonerating
Mr.
Gary
physical
is
not
the
Columbus Stocking Strangler.
h. The exonerating secretor evidence
At trial the State relied upon semen found in the vaginal
washings
or on the body of Ms.
sheets of Ms.
Thurmond and on
Scheible to prove that Mr.
stains
on the
Gary was the Columbus
Stocking Strangler. The State relied upon testing by the Georgia
Crime
Laboratory
and
the
testimony
of
James
Wegel,
a
Crime
Laboratory Technician.
After trial and during postconviction proceedings Mr.
Gary
was provided with work papers concerning testing by the Georgia
Crime
Laboratory
and
wi th
expert
assistance
to
interpret
the
work papers and to scrutinize the trial testimony of Mr. Wegel.
We now know that Mr.
Gary
did
Wegel's
testimony was
on
not
commit
the
attacks
The
semen
found
at
the
Scheible
crime
scene
was
Ms.
false
and that Mr.
Thurmond
and
Ms.
and
the
Scheible.
Laboratory.
left
by a
It was
Thurmond
provided
crime
to
determined in each case
person who was
a
scene
the
Georgia
that
the
Crime
semen was
"weak secretor or non-secretor of
15
blood group 0." 1 As
a
consequence,
secretor status
of
suspects
case
a
saliva
by
taking
it
in the
sample
was
routine
Columbus
to
see
to
test
the
Stocking Strangler
if
the
suspect
was
possibly the type 0 non-secretor who had committed the Thurmond
and Scheible attacks.
Indeed,
a
taken
saliva
status.
sample
was
Although Mr.
as soon as Mr.
from
Mr.
Gary
Gary was arrested,
to
test
Gary was determined to have
his
secretor
type 0 blood,
when his secretor status was tested it was also determined that
he
was
called
a
normal
"weak
secretor,
secretor,"
as
not
a
non- secretor,
was
the
person
who
or
even
left
the
a
so-
semen
samples at the crime scenes.
Dr. Hampikian,
and
forensic
a well-known and highly respected DNA expert
scientist,
reviewed
the
Georgia
Crime
Laboratory
reports and the relevant work papers,
disclosed to Mr. Gary long
after
how
trial,
and described
in detail
analysis can be "very solid evidence"
1 A. person who is a
"secretor"
secretor /non-- secretor
in excluding a
suspect in
is one who passes his blood group into his
other body fluids such as semen and saliva. A "non-secretor" does not secrete
his blood type into body fluids.
Approximately 80% of the population secretes
antigens of their blood type into other bodily fluids,
vaginal
secretions,
tears and perspiration.
and are classified as non- secretors.
20% of
This is a
such as saliva,
semen,
the population does not
genetic factor based upon a
recessive gene and was an important investigative tool in rape cases before
the advent of DNA analysis to include or exclude suspects.
16
a rape case. The results of the secretor testing in the Thurmond
and Scheible cases are almost identical,
unequivocally concluded,
and,
as Dr.
Hampikian
the only valid scientific conclusion is
that "we have a non-secretor who deposited the semen on Thurmond
and the stain in Scheible," excluding Mr.
Gary,
because all the
tests clearly show Mr. Gary to be a positive secretor.
c. The exonerating bite mark evidence
At
the
time
of
trial
the
State
failed
to
disclose
existence of a bite mark mold from the body of Ms.
the
Cofer.
The
State continued to represent that the bite mark mold was missing
until
it
was
discovered
finally
proceedings. Once discovered,
had
consulted
with
the
Dr.
Thomas. David,
provide
Mr.
Gary
consultation.
with
During
testified on Mr.
postconviction
it was also learned that the State
most
Georgia,
during
respected
prior
any
to
forensic
trial,
information
postconviction
but
dentist
in
failed
to
had
pertaining
proceedings
to
Dr.
that
David
Gary's behalf that it was his conclusion that
Mr. Gary could not have left the bite mark on Ms. Cofer.
d. The exonerating shoeprint evidence
At the time of trial the State was in the possession of a
shoeprint at the point of entry where the individual entered Ms.
Schwob's home at the time of her attack.
The person wore a size
10 shoe. The State did not provide this shoeprint to Mr. Gary at
17
the
time
of
trial.
During
postconviction
proceedings
shoeprint was finally disclosed to Mr. Gary by a
Bureau of
Investigation agent
involved in the
the
former Georgia
investigation of
the Columbus Stocking Strangler attacks.
Mr.
Gary
obtained
the
assistance
podiatrist who testified that Mr.
and that
it was
impossible
of
the
charged
and
Gary's
of course,
uncharged
an
expert
Gary wears a
for Mr.
size 10 shoe. This evidence,
of
forensic
size 13
feet
to
fit
shoe
~
into a
raises doubts about all
offenses,
but
especially
with
respect to the Borum case, because of the States' claim that the
Borum
offense
occurred
on
the
same
night
and
in
the
same
vicinity of the Schwob offense.
S.
The Destruction of DNA Evidence
During
the
washings
were
suspected
semen
always
claimed
destroyed,
investigation
Thurmond
offense
a
sample
a
as
well
as
found
on
her
abdomen.
that
during
by
the
taken,
all
Mr.
of
the
postconviction
samples taken from Ms.
discovered
of
of
Al though
vaginal
specimen
of
the
State
had
biological
evidence
had
been
proceedings
slides
of
semen
Thurmond at the time of the offense were
Gary's
counsel
in
the
property room of
be
positive
the
Columbus Police Department.
The
samples
particularly
were
suitable
found
for
to
DNA
testing.
18
for
Given
the
sperm
and
previous
secretor
results
with
respect
to
the
Thurmond
offense
as
described above this DNA testing would have proven once and for
all
Mr.
innocence
Gary's
Consequently,
given
the
as
to
State's
Columbus Stocking Strangler,
the
theory
of
Thurmond
offense.
one
only
and
one
this DNA testing would have proven
Mr. Gary's innocence as to the other offenses.
Testing
O.C.G.A.
§
was
ordered
5-5-41(c).
pursuant
to
Mr.
Gary's
under
This testing was conducted by the Georgia
Results were returned and,
Crime Laboratory.
rights
originally,
it was
concluded that the DNA from the samples did not match Mr. Gary.
shortly
However,
conclusion was
Crime
in error.
Laboratory
equipment
and
contaminated by
thereafter,
was
determined
According to
the State,
personnel
it
that
this
the Georgia
failed
to
sterilize
properly
their
case
had
been
actually
corne
from
the
samples
from
the
Thurmond
a
control
sample
that
had
another individual at the Georgia Crime Laboratory. According to
the State,
it was this person's DNA that had actually been found
on the sample.
This purported conduct on behalf of the Georgia
Crime Laboratory with respect to critical life or death evidence
was
described
by
defense
DNA
expert,
Dr.
Hampikian,
as
"outrageous" and "egregious."
More
samples
important
than
this
particularly useful
purported
for
19
contamination
DNA testing was
the
of
the
fact
that
the State destroyed the entire sample,
and
it
was
no
longer
sui table
for
it was rendered useless,
DNA testing.
In
short,
the
State had in its hands critical evidence in a death penalty case
and destroyed it.
II. REASONS FOR GRANTING THE WRIT
A. TO EXECUTE MR. GARY WOULD VIOLATE THE CONSTITUTION GIVEN THE
COMPELLING EVIDENCE OF HIS INNOCENCE
It is undeniable from the time of trial to the present time
that
the
State's
position
has
been
that
there
was
only
one
Columbus Stocking Strangler and that individual was Mr. Gary. We
now know with absolute certainty that Mr.
the attack on Ms.
Miller and,
Gary is
innocent of
based upon the State's position,
Mr. Gary is innocent of being the Columbus Stocking Strangler.
This
assertion
is
supported
by
a
significant
amount
of
exonerating physical evidence. Specifically:
The
secretor
evidence
regarding
the
attack
on
Ms.
regarding
the
attack
on
Ms.
Thurmond exonerates Mr. Gary;
The
secretor
evidence
Scheible exonerates Mr. Gary;
- The bite mark on Ms. Cofer exonerates Mr. Gary; and
- The shoeprint from the Schwob crime scene exonerates Mr.
Gary.
The newly discovered evidence
is not merely impeaching.
is
directly exculpatory and
It is direct physical evidence of Mr.
20
Garyr s
innocence r
which
is
not
cumulative
of
other
evidence.
Indeed r at the time of trial the State went to great lengths to
try
to
explain why the
physical
evidence
did not
exclude
Gary when r as we now know r it in fact excludes Mr.
perpetrator
of
the
offenses
for
which
he
of
this
physical
sentenced to death. Given
all
innocence r
jury hearing all
no
reasonable
was
of
the
Mr.
Gary as the
convicted
and
evidence
of
evidence now
available r but not available at trial r would convict Mr.
GarYr
much less sentence him to death.
Although the issue has been raised to this Court on several
occasions r the Court has never directly addressed whether in and
of
itself
the
execution
of
an
actually
innocent
violate the Constitution and r
if SOr
freestanding claim of actual
innocence be
in Herrera v.
Collins r
506
U.S.
person
would
by what standard should a
390 r
judged.
417-19
For example r
(1993)r
the
Court
rejected an innocence claim based on the particular facts of the
case without deciding the issue of the viability of a claim of
actual innocence.
skirted this
518 r
554-55
(1995).
this
fundamental
(2006) i
Moreover r
issue.
Approaches
Subsequent cases in this Court have similarly
to
Seer
a
Schlup
federal
A
§...~r
issue.
v.
Del~r
House v.
513
U.S.
and state courts have
Survey
of
Const,i tutional
21
Federal
Right
and
of Actual
BelIr
298 r
547
U. S.
313-317
struggled wi th
State
Courts'
Innocence:
Is
There a Need for a
of
Aftermath
State Consti tutional Right
CPD
Albany
76
440.10(G-l)?,
§
in New York in
Law
Review,
the
1453
(2013) .
Nevertheless,
opinions,
the
Constitution.
that
Herrera
the
concurring
and
the Court,
suggested that
consti tuting a maj ori ty of
execution
opined,
in
of
an
Justice
innocent
person
O'Connor,
joined
would
by
the
Constitution."
Justices
506
Stevens
innocent
U.S.
and
at
is
violate
Justice
"I cannot disagree with the fundamental
executing
dissenting
Kennedy,
legal principle
inconsistent
419.
Justice
Blackmull,
in
dissent
proclaimed,
souter,
the
with
the
joined
by
"Nothing
could be more contrary to contemporary standards of decency,
or
more shocking to the conscience than to execute a person who is
actually innocent." 506 U.S. at 430
Additionally,
this
Court
(citation omitted) .
has
repeatedly
described
legitimate penological goals of criminal punishment,
the death penalty,
v_._ Lou~siana,
consistent
penal ty.
Gregg
especially
as retribution and deterrence.
554
with
the
U.S.
the
407,
442
(2008)
justifications
instructs
that
capi tal
("Our
offered
decision
for
punishment
the
is
is
death
excessive
when it is grossly out of proportion to the crime or it does not
fulfill
penalty:
the two distinct societal purposes served by the death
retribution
and
deterrence
22
of
capital
crimes.") .
However,
it
is
patently
innocent defendant
the
death
innocent
Similarly,
that
in no way furthers
penalty.
defendant
manifest
There
for
is
which
executing the
either
no
harm
there
is
innocent
executing
an
actually
justification for
caused
by
an
need
for
retribution.
a
serves
actually
no deterrent purpose,
since there is no culpable conduct to deter.
Because
executing
the
innocent
does
interest justifying the death penalty,
basis.
This
case,
therefore,
offers
under Supreme Court Rule lO(c)
claim
of
innocence
is
not
serve
either
it has no constitutional
the
opportuni ty
to answer whether a
freestanding
sufficient
the
to
Court
bar
the
execution
of
an
actually innocent defendant.
If,
as Petitioner contends,
and the case law of this Court
appears to suggest, that executing the innocent would offend the
Constitution,
then
the
question
becomes
how
should
that
be
determined and by what standard of proof. While the decisions of
this Court intimate that the burden of proving a persuasive case
of
Court
has
never defined precisely what that might mean. House v. Bell,
547
U.S.
innocence
at
should
554-555.
be
This
"extraordinarily
case
however
high,
offers
the
II
the
Court
the
opportunity to answer that question.
This case is unlike
innocence
involved
~~~~era,
inconsistent
23
where the claimed evidence of
affidavits
of
questionable
witnesses
who
came
forward
years
after
the
crime
letter signed by the defendant admitting his guilt.
despite
a
Instead, Mr.
Gary's actual innocence is based upon physical evidence.
Is such
physical evidence sufficient to prove Mr. Gary's innocence? This
is an important undecided issue which is worthy of review by the
Court under Rule lO(c).
B. TO EXECUTE MR. GARY WOULD VIOLATE THE CONSTITUTION GIVEN THE
STATE'S DESTRUCTION OF DNA EVIDENCE
As was stated above,
DNA analysis of the Thurmond samples
would have proven once and for all Mr.
the
Thurmond offense,
wi th the
previous
and would
have
Gary's
been
innocence as
entirely consistent
secretor evidence.
This,
State's
destruction
impossible
by
the
inexcusable
evidence.
As Dr. Hampikian testified,
to
however,
was made
of
the
DNA
this was "outrageous" and
"egregious" for a forensic laboratory that is reporting "serious
matters in serious cases to national databases."
Petitioner's counsel recognize,
a
non-death
penalty
case,
when
at least in the context of
evidence
which
is
only
"potentially useful" is destroyed,
"bad faith" by the State must
be
488
shown.
therefore
Ar i zona
hold
that
v.
Young blood,
unless
a
criminal
faith on the part of the police,
U. S .
51 ,
defendant
58
( 19 8 8) (" We
can
show bad
failure to preserve potentially
useful evidence does not constitute a denial of due process of
law.") (Emphasis added).
As
this
24
Court explained in Illinois v.
Fisher,
540 U.S.
544,
548-549
(2004),
Youngblood dealt with the
situation where testing of the destroyed evidence offered "only
hope
for
exoneration"
that
was
"potentially
upon
situation
as
here,
where,
based
excluding
Mr.
Gary,
DNA
analysis
the
would
useful,"
secretor
not
have
not
evidence
been
"potentially useful," but instead certainly exculpatory,
the issue of a due process violation.
Trombetta,
467
constitutional
U.S.
479,
value
that
destroyed,
and be
of
unable
obtain
available
was
raising
California v.
this
standard of
evidence
must
both
possess
an
apparent
before
the
evidence
was
such nature
comparable
means.") (citation
alsc:,
only
(1984) ("To meet
materiality,
exculpatory
to
489
See,
a
that
the
evidence
omitted).
defendant
would be
other
reasonably
by
Here,
in
light
of
the
secretor evidence excluding Mr. Gary as Ms. Thurmond's attacker,
Mr. Gary has met both criteria.
In addition,
the
actions
effecti.vely violated the
of
rights
the
of
a
Georgia
Crime
capi tal
defendant
preservation of exculpatory biological material,
56 (a),
as well as his
material.
O.C.G.A.
rights
exculpatory
presume
DNA
that
excluded Mr.
analysis
to
O.C.G.A.
As
evidence
in
the
a
consequence,
should
cause
Thurmond
this
case
Gary and should preclude his execution.
25
the
the
§17-5-
to competent DNA testing of
§5-5-41(c).
spoliation of
Laboratory
this
State's
Court
would
to
have
Otherwise,
the
State can defeat
a
capi tal
defendant's
right
to
competent
DNA testing with impunity.
In
addition,
standard
has
the
been
troubling
calling for
further
the
of
context
a
application
of
lower
the
federal
clarification by this
death
penalty
case
potentially exonerating evidence. See,
Youngblood:
Faith,
Due
Process,
86 Wash.
Stories:
U.
L.
Overcoming
Lost
Rev.
the
"Bad
state
the
courts
especially in
destruction
of
Old Blood, Bad Blood,
and
(2008);
Faith"
and
Court,
and
Ev_idence,
241
Youngblood/Trombetta
and
the
Limi ts
The
Youngblood Success
Destruction
of
of Bad
Evidence
Standard, 109 W. Va. L. Rev. 421 (2006-2007).
This
case
therefore
and unusual punishment
Court,
raises
serious
due
process
and
cruel
issues not previously addressed by this
especially in the context of a death penalty case,
which
call for direction and clarification justifying the granting of
review by a writ of certiorari under Rule 10(c)
this Court.
If,
as
this Court has
of the Rules of
repeatedly held,
"heightened concern for fairness and reliability"
at
stake,
e.g.,
Ford v.
Wainwrigh..!::..,
Woodson
v.
North
Cars::>J:ina,
428
Eighth
Amendment
prohibit
executing
destroys
less
evidence
life
itself,
U.S.
477
280,
305
someone
upon which
guil t
or
especially
when
there
26
U.S.
is a
when death is
399,
414
(1976)
where
innocence
is
there
(1986);
does
the
the
State
depends,
much
every
reason
to
believe
based
on
physical
evidence
would
have
evidence
exonerated
the
that
the
testing
defendant?
Moreover ,
the heightened reliability required in a death case,
standard
be
evidence
which
execution
of
short,
the
penalty.
at
a
minimum
could
that
totally
anytime
exonerate
the
capi tal
defendant
State
should
be
the
a
should
precluded
State
from
be
this
given
should the
capital
not
of
destroys
defendant,
allowed?
seeking
the
In
death
These are issues worthy of review by this Court under
Rule 10 (c) .
C.
THE
DEATH
PENALTY
IS
UNCONSTITUTIONAL
UNACCEPTABLE RISK OF EXECUTING THE INNOCENT
This
case,
as
well
as
numerous
exonerations in death penalty cases,
BECAUSE
other
OF
THE
recent
DNA
reflects the inherent risk
that the innocent could be found guilty and sentenced to death.
Because
"death
standards
of
(1958),
is
it
different"
decency,
v.
cannot
Dulles,
356
satisfy
U.S.
developing
86,
at
101
to allow for our all too error prone judicial system to
impose such an ultimate and irreversible penalty. A healthy dose
of modesty about our system supports a conclusion that the death
penalty is beyond our ability to ensure that no innocent person
is executed. That risk in constitutionally unacceptable and this
Court should so conclude.
27
CONCLUSION
For
all
respectfully
of
the
reasons
requests
that
stated
the
Court
above,
grant
the
the
Petitioner
writ
of
certiorari in this case in order to review the judgment of the
Supreme Court of Georgia.
This
£ ~ay
of March,
2018.
Respectfully submitted,
--r--t---=-=-=-~-.-----=-~
Martin
TIN BROTHERS, P.C.
44 Broad Street, N.W.
Suite 202
Atlanta, Georgia 30303
(404) 522-0400
=:2Z2' L~
M~yre
Michael K.
965 Virginia Avenue, N.E.
Atlanta, Georgia 30306
(404) 879-1515
COUNSEL FOR CARLTON GARY
28
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