Earlier this week, lawyers representing Carlton Gary, dubbed the “Columbus Stocking Strangler,” filed a 34-page motion in Muscogee County Superior Court seeking a new trial based on DNA evidence they say proves their client is innocent. Gary was sentenced to death 26 years ago for the rape and murder of three women in one of Georgia’s most notorious criminal cases. The motion calls for an evidentiary hearing to be scheduled later this year where defense attorneys will present evidence before Superior Court Judge Frank Jordan in an effort to obtain a new trial.
Gary’s lawyers cited the results of two DNA tests in their extraordinary motion for new trial. One DNA test shows that evidence collected from one victim, Martha Thurmond, does not match Gary. In addition, a more recent DNA test shows that evidence collected from the only victim who indentified Gary as her attacker in court, the late Gertrude Miller, excluded Gary as a suspect.
Assistant District Attorney David Helmick commented that the motion alone is not evidence. He stressed that the District Attorney’s office is ready to respond to any arguments the defense team will present in court.
Extraordinary motions for new trial are typically filed upon the discovery of new evidence that could not have been obtained at the time of the trial. If this new evidence involves DNA test results, the defendant must prove that the identity of the perpetrator was a significant issue in the case and that there is a reasonable probability that the DNA evidence, if it had been available, would have led to the acquittal of the defendant. The defendant must also prove that the evidence was not tested at the time of trial either because it was unknown to the parties or the technology for the testing was not yet available. A motion seeking to introduce DNA results may also be granted if the test provides results that are more probative of the identity of the perpetrator than prior test results.
The trial judge has the authority to deny the motion for a new trial after hearing evidence and may even refuse to schedule an evidentiary hearing to consider the motion at all. A denial of the motion will not be overturned unless there is a manifest abuse of discretion. We will assume that a hearing will be held on Gary’s motion for new trial in light of the considerably compelling exculpatory evidence that has now been discovered. The State will likely try to argue that all this proves is that Gary did not act alone but with the other individuals whose DNA was found on the victims.
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