Tuesday, 17 July 2007

A very modern lynching

A very modern lynching

By DAVID ROSE - More by this author » Last updated at 15:37pm on 14th July 2007

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The quaint, Deep South charm of Columbus, Georgia, conceals a hideous truth - it was a crucible of the Ku Klux Klan's lynch mobs.

Now another black man is to be killed in the state, by lethal injection. The man behind his execution? The direct descendents of one of Columbus's first racist killers

On a warm, early summer's morning, the wide streets of Columbus, Georgia, are perfumed by forests of azaleas.

They bloom from the handsome, well-cultivated gardens of Victorian villas, standing proud behind lush lawns and elaborate, wrought-iron verandas.

Below them swirls the Chattahoochee, the great river that once carried paddle boats of cotton down to the Gulf of Florida.

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The death chamber at the state prison in Jackson, Georgia, where condemned inmates are executed by lethal injection

On the far shore, beyond the city limits, the smoky blue Alabama hills fade into the distance.

It is the picture of Deep South serenity; modern America in the cradle of its past.

Columbus is indeed a handsome city. Its middle-class citizens like to declare it "simply one of the best places on Earth". But then they are affluent and white, and many prefer not to dwell on its insidious history: of racism and injustice.

Because Columbus, where Coca-Cola was born, is also a crucible of American slavery and one of its hideous by-products, lynch-mob killing.

This is the birthplace of the first journal to advocate Southern independence in order to preserve slavery.

In the Civil War it was a stronghold of Confederate support and the place where, three years after losing the war, the white ruling elite marked the beginning of the murderous reign of the Ku Klux Klan in Georgia by orchestrating its first documented killing.

They assassinated George W Ashburn, one of the South's leading white champions of racial equality.

Even today, the city is still divided by a racial fissure marked by the east-west thoroughfare of Macon Road – white people live to the north; black to the south.

On both sides of this great divide lie the unmarked sites of past atrocities – racial murders and lynchings.

They include the place where, in 1912, a mob grabbed a terrified 14-year-old black boy from a courtroom after the jury had found him not guilty of murdering a white playmate, Cedron 'Cleo' Land, in a hunting accident.

On his knees in front of the angry crowd the black boy pleaded for his life, but it was to no avail.

Under the leadership of the boy's father and uncle, a wealthy local farmer called Aaron Land, he was shot up to 50 times.

Yet today, nearly a century later, the echoes of those killings ring loudly.

The direct descendants of that mob's leaders have played a hand in a grave new injustice: the arrest, trial and handing down of the death sentence on a black man whose guilt has palpably not been proved beyond reasonable doubt; where box files of fresh evidence are consistently ignored; where self-interest appears to be driving the man to his end.

In Georgia's forbidding Diagnostic And Classification Prison, 56-year-old Carlton Michael Gary has been on death row since 1986 for the rape and murder of seven elderly white women in the so-called Stocking Stranglings.

His most recent attempt to win a retrial failed six weeks ago.

I first met Gary in November 1998 in a bare, oppressive death row visitors' room.

He made no secret of his previous convictions for robbery and handling stolen goods, but he protested his innocence of the stranglings: "I'm not Prince Valiant," he said, "but I'm not Satan, either."

As I investigated his case further, I became certain the trial was a farce, in which evidence was systematically hidden and misrepresented.

Of course, Gary is just one of dozens of black men on America's death row with questionable convictions.

But what kept me coming back to his case was its almost incredible links with the area's deeply rooted racist past.

In 1984, Gary's case was assigned to Judge John Land, 63 at the time, who fatally skewed the trial by refusing to grant a cent of public funding to his defence lawyer.

Land was the son of farmer Aaron Land. Moreover, Gary's request for a retrial was handed to Judge Clay Land – John Land's great-nephew.

His recent judgment came as a complete shock: the new evidence had appeared overwhelming.

It means that at some point in the next two years, Gary will be strapped to a bed and injected with a lethal cocktail of drugs.

It is my view that his death will amount to a legally endorsed modern-day lynching. But my view is unnecessary: it is the facts that shout the loudest.

The Columbus Stocking Stranglings would have been terrifying anywhere.

The killer usually struck at night, picking socially prominent, elderly, white women who lived alone.

Before they were strangled, the victims were raped and brutalised. Most had terrible head injuries, one a fractured chest bone.

Nevertheless, the racial history of Columbus and the wider South intensified their impact.

All but one of the murders happened in the affluent, all-white neighbourhood of Wynnton, and from an early stage the police believed that the killer was black – it was claimed pubic hairs at the crime scenes had "negroid characteristics".

Yet despite their supposed leads, the killer continued to rampage with impunity. The strangler claimed his first victim – Ferne Jackson, 59, Columbus's director of public health – on September 15, 1977.

His seventh, and last, strike was in April 1978, the victim Janet Cofer, a 61-year-old primary school teacher.

Throughout that time, the only suspect the police produced was Jerome Livas, an odd-job man with learning difficulties.

He was arrested after the first two killings. Two weeks later, and with Livas still in jail, the killer struck again.

Bizarrely, the police continued to insist that Livas was their man, because he had told them things that "only the killer could have known".

The charges against Livas were dropped after a reporter interviewed him in jail.

He confessed to the murders in Columbus – but he also confessed to the murders of several US presidents including John F Kennedy and William McKinley, and the Thirties kidnapping of the aviator Charles Lindbergh's baby. The Columbus police needed a new suspect.

Carlton Gary, the son of a construction worker who left when Carlton was still an infant, had been raised in Columbus up to the age of 13, and moved back there around the time of the first strangling.

A year after the final strangling, he was arrested trying to rob a South Carolina restaurant.

The murder-squad detectives compared his fingerprints to those found at the strangling crime scenes. They did not find a match.

Then, five years later, in March 1984, Sgt Michael Sellers, the detective who "solved" the case, went after Gary again.

He told me that his tip-off came from a very unorthodox source – what he described, with complete seriousness, as a "phone call from God".

He said he received a message from a man with Alzheimer's Disease, whose conscious mind had no idea of what he was saying.

Despite the more than dubious nature of this "source", and despite Gary's character, which bore little resemblance to the standard psychologist's profile of the driven and inadequate serial killer, Sellers managed to get the case moving by again comparing Gary's prints with those from the murders.

This time, remarkably, they did match.

After a seven-week manhunt, Sellers and his partner Ricky Boren tracked Gary down to a motel where he was in bed with a girlfriend.

On the night of May 3, 1984, they interrogated him for nine hours, by the end of which they had obtained a damning confession.

Awkwardly, they made no contemporaneous notes, and neither, apparently, did they tape their conversation.

Instead, Sellers testified that he went home afterwards and sat at his kitchen table at 4.30am,producing a full and accurate record from memory of what Gary had said.

Two months later, he showed it to Boren, who recalled more details: together they then produced the undated and unsigned, typed, 12-page document that was handed to the jury at Gary's eventual trial in 1986.

No court in Britain, nor in most of America, would have admitted it as evidence, but the judge in Columbus accepted it without demur.

It was not the hearing's only strange feature.

John Land's pre-trial ruling that Gary's defence should not receive any public funding meant that his lawyer, a Vietnam veteran named Bud Siemon, was unable to do his job.

At the same time, the police and prosecution spent millions of dollars as they tried to build their case.

When the prosecution presented scientific evidence – much of which has turned out to be very dubious – Siemon had no means of scrutinising it.

He worked on the case for two years and it almost bankrupted him.

Judge Land was a powerful figure, not only in Columbus but across the state – the leader of a secretive network of politicians, lawyers and businessmen known as the Fish House Gang.

As a young man, he had been a segregationist state senator and, later, as district attorney, he helped protect the murderer of Dr Thomas H Brewer, a leading black civil-rights activist, accepting the killer's spurious claim that he shot him seven times in self-defence.

Years later, in interviews with me, John Land said he regretted his racist past, and realised that his actions in Gary's case were wrong.

But his change of heart had come a little late. At the end of Carlton Gary's trial, the jury took less than an hour to find him guilty.

Under Georgia law, while the prosecution has wide powers to decide what evidence to keep secret when a case goes before a jury, it can later, at the appeals stage, be compelled to hand over almost everything to the defence.

In 1992, six years after Gary was sent to death row, his appeal lawyer, Jeff Ertel, saw the prosecution's sealed files.

There, Ertel found documents that undermined much of what the jury had heard.

Gertrude Miller, who survived the strangler's attack, had identified Gary in court.

The prosecutor, Bill Smith, told the jury that she had never picked out anyone before.

In fact, she had identified three previous suspects, and when she first spoke to the police, she had said it was so dark she could not say whether the man who raped her was black or white.

Other papers suggested Gary's interrogation had been taped, as he had always claimed, and that he had said nothing incriminating.

DNA testing was starting to become available, and the first of the now almost 200 people freed from death row as a result had been exonerated.

In Gary's case, Ertel learnt, this would not be possible.

According to the prosecution, semen samples had been destroyed years earlier on the grounds they constituted a "bio-hazard".

Meanwhile, Ertel decided to investigate a photo of Janet Cofer that showed a deep bite wound on her left breast.

It might, he thought, be possible to compare the marks in the picture with Gary's teeth. Ertel called an expert in Atlanta, Dr Thomas David.

When Ertel arrived at his office, David came straight to the point.

"I know about this case," he said. "I'm the guy they showed the bite cast to."

Ertel stared at him in amazement. "Bite cast? What bite cast?" David told him that two months after Gary's arrest, prosecutor Smith and others had been to see him with a mould made from the wound on Cofer's breast.

He said that the cast had been made by a Columbus dentist, Carlos "Sonny" Galbreath.

Ertel phoned him and asked what had happened to it, but Galbreath said the cast had been lost or destroyed.

Seven years later, in March 2001, I met Galbreath for coffee in the Columbus Hilton. We had only been talking a few minutes when he dropped his bombshell.

"I do know this. The bite cast is still in existence."

He went on to say that the cast would reveal the killer had a distinctive, unusual deformity: a wide gap between his top front teeth, one of which was "rotated" out of alignment by about 40 degrees.

"I guess that would have been visible every time he opened his mouth," Galbreath said.

Gary's teeth were straight and even, as those who had known him at the time of the murders could confirm, including Gene Hewell, a fashion-store owner for whom Gary had modelled.

"Believe me," Hewell said, "you don't get too many models with twisted teeth."

I had an obvious question: why had he not given it to Ertel years earlier? The dentist laughed.

The thing was, he explained, that Doug Pullen, the assistant prosecutor at Gary's trial, was his best buddy.

"Doug said, “You tell him any damn story you like, but on no account can he look at [that] model.”"

Finally, in 2005, Thomas Dunnavant, the Columbus coroner, announced that he had found the cast, with identifying label still attached, in the back of a cupboard.

Dr David, the dental expert, testified at this year's appeal hearing that there were significant differences between the killer's teeth and Gary's.

He was satisfied that Gary was excluded as the man who had bitten Mrs Cofer.

Clay Land, the judge conducting the appeal hearing, now had to decide whether to quash Gary's conviction and order a new trial.

The bite cast was far from the only piece of fresh evidence that threw doubt on the verdict.

For example, although DNA tests were impossible, I had managed to smuggle some of Gary's semen out of death row.

Thanks to tests done after the murders, we demonstrated that the biochemical make-up of Gary's semen was completely different to that of the killer.

The Stocking Strangler was a "non-secretor", meaning he produced a very low level of the antigen that indicates blood type within semen.

Gary is a '="secretor" – his semen contains more than 3,000 times as much of this antigen as the killer's.

Gary's lawyers were optimistic.

But they had not reckoned on the strength of Columbus's old-boy network.

Since Gary's trial, many of the white officials responsible for sending him to death row have prospered.

Ricky Boren, the senior detective in the case, has risen to become the city's chief of police.

Jim Wetherington, chief at the time, was last year elected mayor.

The two prosecutors, Bill Smith and Doug Pullen, are now superior court judges.

A Columbus academic told me: "If Clay Land gives Gary a new trial, those old guys are going to run him out of town."

Land's ruling came on May 31. In his judgment, he accepted that the bite cast should not have been concealed from the trial: it was a breach of Gary's constitutional right to due process.

But it was not enough to get him a retrial. It was "possible" that the jury, had it seen the cast, would have reached a different verdict, but not "probable": it was not enough "to undermine confidence in the outcome" of the original trial.

Effectively, Judge Land was saying: the bite cast may not match Gary's teeth, but this is no big deal.

If Gary reaches the end of his journey in the execution room, as now seems likely, he will be taken, a day or two before his scheduled time, to a special unit, H5, "the death house".

It contains a single cell and the death chamber itself, where the walls still exude the indelible stench of burning flesh from the days of electrocution.

After visits from friends, family and lawyers and – should he want it – a final meal, he will be granted a last wish.

Many of the 39 killed in Georgia since the return of the death penalty in 1976 have asked to do what no death row prisoner is permitted to do during their time there – to walk on the grass outside.

Then, at 7pm on the appointed day, he will be laid on a gurney with thick straps around each limb, his neck, chest and abdomen.

A technician will fit him with intravenous lines. Then the curtains dividing him from the spectators – reporters, relatives and, no doubt, most of Columbus's top legal officials – will part.

The warden will ask if he has a final statement, and then the state will kill Carlton Gary by lethal injection.

Andrew Hall, QC and chairman of the English Criminal Bar Association, said that the appeal judgement that may lead Gary to this room would have been "inconceivable" in the UK.

Where it can be proved that fresh evidence might have induced reasonable doubt in jurors' minds, a conviction must be quashed.

The fact that the prosecution decided not to disclose the cast made the position more serious.

He added, "The test in Britain is whether the evidence that was not disclosed would have been relevant: did it have the potential to influence the trial?

"In this case, it would have been fatal to the prosecution."

I cannot prove that any of the manifest unfairness of Carlton Gary's trial and appeal has been the product of racism by its participants.

I have heard Doug Pullen state his own abhorrence of such attitudes, and I have no doubt that the other white protagonists would do the same.

Yet this story has happened in the South, a region where historically racism has been a constant theme.

It has also been acted out by descendants of long-standing families with deep-rooted racist backgrounds.

This isn't quite the end of the road. Later this year, there will be a hearing in the 11th Circuit Court of Appeals, covering Georgia, Alabama and Florida, and after that, the US Supreme Court.

But getting anywhere at such a level is extremely difficult.

Last week, Gary sent me a message via his lawyers.

"I always said you were too optimistic.

"No judge who is part of Columbus was ever going to stop this legal lynching.

"My last hope is that the judges who will consider my case now will not be from there. Maybe they will have open minds."

'Violation: Justice, Race And Serial Murder In The Deep South' by David Rose is published by HarperPress, £16.99

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