In his judicial opinion, Land simply disregarded the testimony heard in his court in February that the cast from the wound on Janet Cofer’s body does not match Gary’s teeth. He says it is not enough to merit a new trial even when considered along with all the other exculpatory evidence that was hidden from the original 1986 trial. It is “possible” that the jury might have reached a different verdict but not “probable,” and thus, Land asserts, it doesn’t clear the bar set in precedents by the Supreme Court.

As Land’s opinion puts it:

Even assuming that the bite mark cast is favorable to Petitioner, the Court finds that, when considering it collectively with the other undisclosed evidence, it does not reasonably “put the whole case in such a different light to undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 290 (1999)(quoting Kyles, 514 U.S. at 435).

Reduced to essentials, Land is saying: Ok, so the bite cast may not match Carlton Gary’s teeth. There’s other evidence, such as his confession, so this is no big deal. He does not address the rather obvious question: if Gary did not bite Janet Cofer, then who on earth did?

There will now be a hearing in the 11th Circuit not just on the bite, but on all the other material that Land originally rejected in 2004, such as the semen (serology) type. It will likely not take place for several months.

After that, there will be only the Supreme Court. If Gary doesn’t win in the 11th Circuit, he could be dead in two years.

Judge Clay Land is, of course, the great nephew of John Land, the judge who originally denied Gary funding, and the direct descendant of the men who lynched Teasy McElhaney.

Perhaps the conclusion to my book is too optimistic. Maybe Columbus has changed less than I thought.

In March 07, David Rose published Violation- an exposé of an appalling miscarriage of justice that unpicked a city’s history of racism. At the time of going to press, the subject of his book, Carlton Gary, awaited resolution of his case from death row. There was a chance that the revelation of new evidence relating to his case would grant him a hearing. In his epilogue, David Rose, promised to update readers to developments in the case. There follows the first of such updates.

After a wait of several weeks while he made up his mind, Judge Clay Land agreed to hear new testimony about the bite cast, though not the footprints or fingerprints. He convened a hearing in his court in downtown Columbus on February 14, 2007.

As well as Dr David, Jack Martin called five witnesses who had known Carlton Gary well in the 1970s, including Earnestine Flowers and Gene Hewell of the Movin’ Man: all of them said that Gary had never had a gap between his upper front teeth or rotations to either his lower or upper teeth. If had done, Hewell said, he would not have employed him as a model.

On that basis, Dr. David was able to go further than he had in his affidavit. His analysis of the lower teeth, where Gary had not had dental work, had already made him quite close to being sure beyond reasonable doubt that Gary could not have bitten Mrs Cofer, Dr David told the court. His only uncertainty was due to the relative shortage of physical evidence, not its quality. But the witnesses’ description of Gary’s upper teeth had tipped the balance, because the killer’s deformity revealed by the cast would have been so clearly visible. Now, Dr David said, he could state with “reasonable scientific certainty” that Carlton Gary had to be excluded as the author of the bite.

The state, represented as usual by Susan Boleyn, had no evidence with which to rebut David’s opinion, and she could not attack his credentials – after all, the state had used Dr. David as a prosecution expert witness many times in the past.

After the hearing, both sides filed paper briefs. Martin argued that the cast testimony had to be seen in the light of the fact that it had long been hidden, and considered in conjunction with all the other fresh evidence that had come to light since the start of the State habeas corpus process back in the 1990s. If the judge weighed the cumulative effect, he must vacate Gary’s conviction and grant him a new trial. Boleyn countered with a purely procedural argument, claiming once again that the judge should not take account of Dr David’s factual assessment at all, because the defence ought to have found the cast at an earlier stage of Gary’s appeals, and was hence barred. This, of course, was the very argument that Land had already rejected when he granted permission to David to analyse the cast.

At the time of writing, Judge Land’s decision is expected soon.