E-mail a friendDavid Rose
airdate June 11, 2007
David Rose is an investigative journalist and a contributing editor at Vanity Fair, who has worked for The Guardian, The Observer and the BBC. He was the first journalist to interview the Tipton Three after their release from Guantanamo Bay. Rose is the author of six books, including Guantanamo and, his latest, The Big Eddy Club, about the history of racial injustice in small-town Georgia. His awards include the David Watt Memorial Prize and the One World award for human rights journalism.
David Rose
Tavis: Last month, we told you about the case of Georgia death row inmate Carlton Gary, an African American accused of several gruesome murders in Columbus, Georgia in the seventies. Despite numerous discrepancies and problems with his case, Carlton Gary has remained on Georgia's death row for over 20 years now.
"Vanity Fair" contributing editor David Rose has studied this case extensively for his most recent book "The Big Eddy Club." He joins us tonight on the phone for an update on this case. David, nice to have you back on the program.
David Rose: Great to be back, Tavis.
Tavis: Why don't I start by asking you to give the quick back story on Mr. Gary, on the case, before we talk about what's happened in the days since we last talked about it on this program?
Rose: Yes, well, when I was here last I told you how his case was now very much at a critical stage because the district judge in Columbus, the federal judge, whose name is Clay Land, was about to make a decision about whether to give him a new trial on the basis of a bite cast made from a deep wound in the body of one of the victims that had been deliberately hidden by the prosecution and the police from his trial, which had now come to light and was examined by a world-renowned expert over many months last year.
And he finally testified in Judge Land's court in February that the bite cast does not match Carlton Gary's teeth; that he cannot have been the man who bit this woman, and therefore we can reasonably infer he was not the Stocking Strangler, as the serial killer is known. Well, at that time, when we spoke last, we were waiting for the judge to make his decision and he now has done so.
And I regret to say that he has refused to grant Carlton Gary a new trial. He is saying that although the jury might have made a different decision if they'd known about this bite cast, that this was possible, it was not, in his view, probable and therefore he says that this does not clear the bar that it needs to clear in order to get a new trial.
To quote from the opinion, he says that, "Even assuming the bite mark cast is favorable to Carlton Gary, his court finds that if he considers it in conjunction with other evidence, it does not unreasonably put the whole case in such a different light to undermine confidence in the verdict." So, Carlton Gary stays on death row, and basically what Judge Land is saying is, “Okay, so maybe he didn't bite this woman, but no big deal.”
Tavis: I guess what I'm having trouble with - and maybe you can enlighten me as to what the judge was thinking - but when I hear you suggest - or not even suggest but in fact say that the judge said that while it might be possible, it's not probable with regard to how the jury might have found differently in the case had they known about this bite cast, I'm not sure that our system of jurisprudence is based upon - at least I have learned that it's not based upon possible and probable, it's based upon reasonable doubt.
And those are, to my mind, two different things. If the bite cast, we now know, was not that of Mr. Gary, it does, in fact, raise this question of reasonable doubt. How did we go from reasonable doubt to possible and probable in a judge's mind, retrospectively?
Rose: Well, this is a very good question, and I think the answer is that the way that appeals have evolved in the law, and the way that the Supreme Court has treated appeal cases going back now over 20 years, it's become incredibly difficult to get a new trial on the basis of fresh evidence, even when it does undermine a conviction to the extent that this bite cast does.
The truth is, there are now two standards in America of proof. There's proof beyond reasonable doubt when you come before a jury, but when it comes to an appeal, a judge will kind of second guess what a jury might have said. And really, what you have to do is something very close to proving your innocence beyond reasonable doubt, rather than introducing reasonable doubt. And proving your innocence beyond reasonable doubt is of course much, much harder to do.
Tavis: But David, with all due respect, even with that said - and I'm not casting aspersion on you, I'm talking about the judge here, obviously - even with that said, the judge has to know that every day, practically, we're reading a case of someone being let out of prison because years later evidence was found to exonerate them.
And again, I'm not suggesting that his decision ought to be based solely upon that, but when you say that it's getting increasingly difficult to get a case re-heard, I'm trying to juxtapose that with the reality of what I read in the paper every other day that somebody else just got out and indeed in this case, got off of death row because of new evidence.
Rose: Well, indeed that's right. Of course, what there usually is in these cases is DNA evidence. And what happened in Carlton Gary's case was that at an early appeal, the district attorney of Columbus, Georgia at the time, a man called Doug Pullen, testified that the semen samples taken from the crime scenes had been destroyed on the rather strange basis that they constituted a biohazard.
So yeah, you do have a very strange legal position. Now, Carlton does have a chance to appeal this to the 11th Circuit Court in Atlanta, but I think you have to look at the personality of the judge, too. I think the truth is that he's a very conservative individual; he comes from a family, which has a very strange history in Columbus.
He's the direct descendent of a man called Aaron Brewster Land, who - well, he's a direct member of a family which had a guy called Aaron Brewster Land who led not one but two lynch mobs 100 years ago in Columbus, and his own great-uncle, who was also a judge, Judge John Land, made a series of decisions in Carlton Gary's case which basically meant he had no funding at all when he came to trial.
His lawyers just had no money at all to challenge the state's evidence. I think what's happened is that he's just not been willing to take on the legal establishment, the kind of good old boy network of lawyers who have produced the justice system in Columbus, and he's just - he hasn't stepped up. He's refused to have the moral courage to put this thing right.
Tavis: So finally, you mentioned earlier that Mr. Gary does have the right to appeal this decision. I assume that he will?
Rose: Well, absolutely. His lawyers are now planning to go to the 11th Circuit, hoping that they will have the courage to give him a new trial. Clearly, it's a very explosive case in Columbus, Georgia. An African American accused of murdering and raping seven prominent, elderly White women. But somebody has to do the right thing if the system of justice is to have any meaning at all.
Tavis: I should mention, before I mention this book again, that just in case you're interested in Georgia, the numbers are these: 22 percent, historically, of African Americans who are accused of murdering Whites get the death penalty. Three percent of Whites who kill Blacks in Georgia get the death penalty. That said, the book about this case, written by "Vanity Fair's" David Rose is "The Big Eddy Club."
David Rose, I would say nice to have you on the program; under these circumstances, I can't say that. But I do look forward to talking to you as this case continues to unfold.
Rose: Thank you very much.
Tavis: Thank you, David Rose.
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