“The prosecutors clearly engaged in systematic exclusion of blacks during jury selection in this case,” Allen wrote in a Jan. 10 decision. “They identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.”

Prosecutors notes from the 1977 murder trial of Johnny Lee Gates in Columbus, Ga,. show that all four black prospective jurors (marked with an N in the notes) were struck. Each name also has a 1 to the left of it, indicating that prosecutors found them least favorable.

The prosecutors' notes labeled prospective white jurors with a "W" and black jurors with an "N." Prosecutors also described some prospective black jurors as "slow," "old + ignorant," "cocky," "con artist," "hostile" and "fat."

Jurors were also ranked on a scale of 1 to 5, and all black jurors were given a “1.” The only one of the 43 prospective white jurors who got a “1” said he was opposed to the death penalty, Allen noted.

“Taken together, the notes demonstrate a purposeful and deliberate strategy to exclude black citizens and obtain all-white juries,” Allen said.

Moreover, the judge said, Muscogee County prosecutors’ strikes employed in seven death penalty trials from 1975 to 1979 confirm the discrimination. In six of those seven cases, prosecutors removed every potential African-American juror to secure all-white juries. In the seventh case, an all-white jury was impossible because the prosecution did not have enough strikes to get rid of all the black jurors, Allen wrote. On top of that, prosecutors “used racially charged arguments to the all-white juries they secured.”

Allen concluded: “The evidence of discriminatory intent is overwhelming.”

If Gates’ lawyers had raised such a claim much earlier, it is likely they would have prevailed. But because they didn’t, Allen said he had to rule against them on that claim.

Johnny Lee Gates

One requirement for obtaining a new trial is for a defendant to show he was diligent in bringing his claims without undue delay. Because Gates could not give a reasonable explanation why he didn’t bring his race discrimination claims sooner than decades after his trial, he cannot get a new trial on that ground, Allen said.

But Allen found that was not an issue with the new DNA evidence.

During the trial, prosecutors said the killer took $480 in cash from Wright, the murder victim who suffered a fatal gunshot wound to her head. A state investigator testified that the killer tied a bathrobe belt “very, very tightly” around Wright’s hands and double-knotted the belt. A necktie was also tied around the victim’s hands, with knots binding it together.

But during a hearing last year, Gates’ legal team presented the testimony of DNA expert Mark Perlin. He said Gates’ DNA was not found on the necktie or the bathrobe belt.

“The exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory,” Allen said. “Therefore, Gates is entitled to a new trial.”

Allen noted that the state called on two GBI scientists “who did not contradict, but instead supported, Dr. Perlin’s testimony.”

Allen also found Perlin to be a credible and qualified witness, and he noted that, under the circumstances, the three experts shared a distinct connection. “This was the rare hearing in which the scientist who trained the GBI scientists testified on behalf of the defense,” the judge said.

THE FIGHT FOR A NEW TRIAL

Lawyers from the Georgia Innocence Project and Southern Center for Human Rights have long sought to get a new trial for Johnny Lee Gates. In a motion filed last year, the lawyers noted that Columbus prosecutors had struck all prospective black jurors in six of seven death-penalty trials — including Gates’ — from 1975 to 1979. In the other trial, prosecutors couldn’t get an all-white jury because they didn’t have enough strikes to get rid of all the black jurors. A Georgia Tech mathematics professor found that the probability that black jurors were removed for race-neutral reasons was 0.000000000000000000000000000004 percent.