How the man from the death penalty machine

YOU’VE seen the movie. In the oppressive heat of a wood-panelled courtroom in America’s Deep South, a black man is tried for a series of murderous sex attacks against vulnerable white women. The evidence is deeply flawed, yet the defendant is found guilty and sentenced by the judge to death by lethal injection. He then faces decades on death row, awaiting his fate.

Last week, I found myself appearing in that movie – or at least, its sequel: a final appeal hearing. And if that wasn’t surreal enough, my role involved brandishing a shoe-size gauge – an instrument that could mean the difference between a man’s life and death. Quite why it takes a British journalist to help determine the fate of a condemned man in America raises its own questions about the US justice system. But the facts behind this extraordinary case write their own compelling script.

The main character in this drama is Carlton Gary, dubbed the Stocking Strangler, who was convicted of raping eight women and murdering seven of them in Columbus, Georgia, in the 1970s. The spree reduced the city to a state of terror. Police were convinced the killer was black, and yet he seemed able to strike with impunity in a wealthy, all-white neighbourhood. He preyed unerringly on elderly women who lived alone, despite nightly patrols by police, soldiers from a nearby US Army base, and the local chapter of the Ku Klux Klan.

The final murder occurred in 1978 but the strangler remained at large as police investigated more than 100 suspects. Then, in 1984, Gary – who had a record for robbing fast-food restaurants and had just absconded from an open prison – was arrested, and he went on trial two years later. He has been on death row ever since.

My involvement began almost ten years later. Wendy Murphy, a dental hygienist from Norfolk, had befriended Gary through a prisoners’ welfare group. She wrote to me suggesting he was innocent. I wrote a book about the case and a series of articles for this newspaper, highlighting glaring conflicts in the evidence that would have cleared him in a British court years ago. Since 2001, I have

Prosecutor screamed at me in the witness box

been the official, unpaid investigator for defence lawyer Jack Martin.

Gary has been the subject of a number of reviews and appeals in that time. Five years ago, he came within three hours of being put to death before being granted a stay of execution to allow DNA tests.

Last week’s hearing – in what the state of Georgia calls an ‘extraordinary motion for a new trial’ – was his absolute final chance, and I was called to give evidence.

The pictures on these pages, taken from US TV coverage, centre on a dramatic turn in the hearing. I am pointing to Gary’s feet. Gary, shackled in leg irons, has one foot in the shoe gauge. We are both at the defence lawyer’s table and around the room are heavily armed deputy sheriffs. The judge, obscured in the main image, has come to take a closer look.

We are doing this because the killer in this case left a series of size 9 footprints at one of the crime scenes. Gary’s feet are size 14.

A similar conflict was one of the crucial twists in the case of O.J. Simpson, the American football star sensationally tried in 1995 for murdering his ex-wife Nicole and her friend Ron Goldman. When Simpson tried on a bloodstained glove found at the scene, it was clear to the court that it was too small, prompting his lawyer to tell the jury: ‘If it doesn’t fit, you must acquit.’ Acquit they duly did.

During a break in last week’s hearing, I went down to the court cells with the shoe gauge that I had borrowed from a nearby shop. This confirmed Gary’s feet are indeed huge. Back in court, Mr Martin called me to testify about what I had just done.

For the prosecution, Sabrina Graham, Georgia’s assistant attorney general, tried to object on the grounds that I am not a professionally qualified shoe expert.

‘Let’s do it here,’ said Judge Frank Jordan. In front of the TV cameras, Gary shuffled into the middle of the court where we repeated the process. His feet were still size 14.

Losing her composure, Ms Graham screamed at me in the witness box, saying the judge should disregard my measurements on the grounds that my book was ‘lies and propaganda’.

It will be months before we know if the judge shares her view – and decides whether Gary will live or die. IN FACT, in the case of State vs Carlton Gary, the shoe evidence is far from the most compelling concern. Most disconcertingly, a DNA test has conclusively ruled him out as the source of semen found on the nightdress of the strangler’s first victim.

Gertrude Miller was 64 when she was raped and throttled in 1977. She narrowly survived the attack.

Last week Dr Greg Hampikian confirmed in his testimony the difference in DNA. He is a leading DNA scientist who conducted the analysis that led to the first, successful appeal by Amanda Knox, the American student accused of killing her British flatmate Meredith Kercher in Perugia.

Then Dr Thomas David, an expert forensic dentist, testified that a distinctive mould of the murderer’s teeth, which was made from a savage bite wound on the breast of another victim – 61-year-old Janet Cofer – does not match Gary’s teeth. The mould shows the killer had crowded and twisted lower teeth, while Gary’s are perfectly even. Indeed, at the time of the murders, he was working as a model.

Yet at the original trial, the prosecution hid this evidence. At one of Gary’s many previous appeals in 1994, officials falsely claimed all the samples of the killer’s bodily fluids, which had been swabbed from the victims, had been destroyed years earlier. They claimed this was a matter of ‘policy’, saying they were a ‘bio-hazard’.

As for the footprints, they came to light only when Jim Covington, a retired agent with the Georgia Bureau of Investigation, contacted Mr Martin. Having spent a year in joint-charge of the murder inquiry long before Gary’s arrest, Mr Covington had personally photographed and measured them at the crime scene, and given copies to every detective on the case. Thankfully, he kept one for himself, which he now produced in court.

But in America, where there were 38 executions last year and where more than 3,000 prisoners remain on death row, they do things differently. Last week the prosecution fielded no fewer than four lawyers, and for five days they struggled for all they were worth to dismiss flaws in their case.

Assistant district attorney Don Kelly insisted that semen on Ms Miller’s bloodstained nightdress might not have been left by the murderer, despite the garment having been found at the foot of her bed. Ms Miller was a widow who was not sexually active when she was attacked.

In 1986, the trial’s most dramatic moment came when Ms Miller identified Gary as the man who raped her.