Still racist, arbitrary and unfair: the death penalty in Georgia 50 years after Furman
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False dawns don’t get much more misleading than the US Supreme Court decision in Furman v. Georgia[i] handed down 50 years ago. Having decided that the death penalty violated the Fourteenth Amendment’s due process requirement by being arbitrary, racially discriminatory and unfair, it determined this meant it also amounted to what the Eighth Amendment calls cruel and unusual punishment. For four years, the ‘machinery of death’ stopped functioning.
Of course, it was a Pyrrhic victory. Since Furman, Georgia has executed 76 inmates, including a man with whose case I became involved for more than 20 years, Carlton Michael Gary. His story perfectly demonstrates that the safeguards introduced by statute[ii] in Furman’s wake and approved by the Court in Gregg v. Georgia[iii] in 1976 have failed.
To be sure, death sentences are now imposed according to a codified menu of aggravating factors and reviewed by appellate forums – in Georgia, the State Supreme Court. Nevertheless, the stains of racism and unfairness remain deep and indelible.
Gary was convicted and sentenced to death in August 1986 as a serial killer, the ‘stocking strangler’ who had raped and murdered seven white, elderly women in the city of Columbus nine years earlier. His first victim, Gertrude Miller, was raped and strangled, but survived. From an early stage, the police were convinced that the murderer was African-American.
The racial charge this gave the case was overwhelming. Columbus, population 200,000, was an economic powerhouse of the South during the Civil War, and in 1868 became the scene of the first documented murder committed by the Ku Klux Klan. It witnessed many lynchings, two of which were led by a local landowner named A.B. Land. His son, John Land, became District Attorney (DA), then a judge. As DA, he ensured that the man who assassinated Columbus’s Black civil rights leader, Dr Thomas H. Brewer, in front of 42 witnesses in 1948, walked free without being charged.
In 1984, shortly after Carlton Gary’s arrest, it was the now Judge Land who made a fateful ruling. Land had appointed a defence lawyer whom Gary did not trust. When Gary asked Land to replace him with a capital specialist from Atlanta, Bud Siemon, he agreed. But he stipulated that if Siemon took the case, he must do it pro bono, while any request for public funds to meet the costs of finding witnesses or experts who could challenge the State’s questionable scientific evidence would be denied.
It was a complex case that took two years to come to trial – a period in which Siemon almost went bankrupt. And in court, Land’s ruling meant the defence was effectively crippled.
Soothed by Gregg’s promise that capital sentences must henceforth be thoroughly reviewed, Siemon believed that the Georgia Supreme Court or a higher appellate forum was bound to order a new trial on the grounds that Gary’s Sixth Amendment right to effective assistance of counsel had been violated. No court ever did. The State Supreme Court said that by rejecting his court-appointed attorney, and by failing to specify exactly how being unfunded had harmed his case, Gary must bear the responsibility for his plight. Eventually, that warped logic was upheld by the US Supreme Court. Evidently, the US Constitution’s idea of ‘effective assistance’ is rather different to what other, human rights-based jurisdictions term ‘equality of arms’.
I first met Gary ten years after his conviction, in 1996, because I wanted to write a book about the injustices of the US death penalty, focusing on a particular case. His seemed ideal, because even then, it was clear that the jury that tried him had been kept in ignorance of critical, exculpatory facts. At his State habeas corpus hearings, which had just come to an end, fresh evidence undermined important aspects of the prosecution case. For example, it transpired that the victim who survived, Gertrude Miller, had made a statement to police on the day after she was raped, saying it had been so dark that far from being able to identify her attacker, she could not even say whether he was white or African-American. Yet in court, she pointed at Gary and insisted it was him: a point underlined by the prosecutor’s closing summation, in which he said that Gary’s face was "burned into her memory" and that she "saw it in her mind" every night.
I became Gary’s lawyers’ unpaid investigator, as well as, eventually, the author of a book. Over years I dug up further hidden evidence, none of which had emerged at the trial. It included shoeprints left by the killer at one of the murder scenes – five sizes smaller than Gary’s feet; a cast of a bite wound in one of the victims left by a man with crooked, tangled teeth, in contrast to Gary’s, which were straight and evenly spaced; and lab papers showing that the killer’s semen was left by a ‘non-secretor’, which means he didn’t express his blood group chemical marker in other bodily fluids. Like most of the population, Gary was a secretor.
Finally, there was a DNA test. Simply put, Carlton Gary cannot possibly have raped Gertrude Miller. Someone else did, and the method he used to strangle her – a distinctive, self-tightening knot in the stockings around her throat – was identical to that used to murder the other women.
There should have been a further test exonerating Gary of another of the attacks, that on murder victim Martha Thurmond. Yet astonishingly, not long before his final hearings back in Columbus on an ‘extraordinary motion for a new trial’, the slides preserved from semen swabs taken at the Thurmond crime scene were sabotaged at the Georgia State crime lab. Someone there produced their own semen sample, presumably in a lavatory, and smeared it all over the precious slides dating from 1977, so rendering them untestable.
Why hadn’t these DNA tests been done earlier? Because at Gary’s State habeas hearings in 1994, the then-DA testified that the samples had all been destroyed as ‘bio-hazards’. In fact, they were in a box in the Columbus police station evidence room until I unearthed them by circuitous means in 2009.
The weight of exculpatory evidence seemed overwhelming. Had Gary’s defence been funded, some of it may well have emerged at his trial. But the judge conducting the final hearings ruled that it was not enough to persuade him that if the jury had known about it, they would have reached a different verdict or sentence. That meant Gary would die.
Carlton Gary spent part of his last day on earth, 15 March 2018, on the phone with his wife, Debra. She had arranged for a local TV reporter to be present and his words were recorded and preserved: "I did not kill those women," he said. He said he felt sorry for Gertrude Miller, but thought she had been railroaded, and did not tell the truth.
I will go to my own grave convinced that he was innocent, the victim of a process whose manifest flaws were just as glaring as they were at the time of Furman. And so they remain.
David Rose is Politics and Investigations Editor of the Jewish Chronicle. His book, Violation: Justice, Race and Serial Murder in the Deep South is published by Harper Collins, and in the US, under the title The Big Eddy Club, by The New Press.
[i] 408 US 238 (1972) (US Supreme Court).
[ii] Following on from Furman, Georgia introduced a new death penalty statute, based on an approach of ‘guided jury discretion’, with a bifurcated process separating determination of guilt and sentencing, along with additional appellate review of capital sentences. For further details see: Death Penalty Information Center, ‘Legal background on arbitrariness’ (2022).
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