Jury’s ‘Gag Gifts’ Don’t Void Death Sentence

(CN) - A man sentenced to death for the rape and murder of a 15-year-old girl is not entitled to a new trial, despite the jury's sexually explicit "gag gifts" to the overseeing judge and her bailiff, the 11th Circuit ruled.

Marcus Wellons, of Cobb County, Ga., raped and strangled a 15-year old neighbor in 1989, after a break-up from his girlfriend left him "distraught and unbalanced." A jury found Wellons guilty and sentenced him to death in 1993.

After discovering that, near the end of the trial, the jurors who condemned him sent penis-shaped chocolates to the trial judge and breast-shaped chocolates to a bailiff, Wellons claimed he had been denied a fair trial by an impartial judge and an unbiased jury. He also alleged that the prosecutor had disqualified three of the four African-American potential jurors on race-based grounds.

State and federal courts repeatedly upheld Wellons' conviction and the 11th Circuit dismissed his claims of juror, bailiff and judicial misconduct and race bias in jury selection. But the U.S. Supreme Court reviewed the case in 2010 and ruled that the federal appeals court should decide whether Wellons got a fair trial in light of the gifts. The 11th Circuit then ordered the Northern District of Georgia to grant discovery and conduct an evidentiary hearing.

After considering the new evidence, the district court again denied Wellons' petition.

In reviewing the new decision, the 11th Circuit last week ruled that Wellons received a fair trial by an unbiased jury.

Though "tasteless" and inappropriate, the gag gifts did not have any effect on the judge's impartiality or the jury's decision, the unanimous opinion states.

"The record establishes that the unfortunate giving of these tasteless gifts was nonetheless inconsequential to the verdicts, and otherwise played no part in the judge's or jury's consideration of the case," Judge Charles Wilson wrote for the court. "The two gifts were given independent of each other, given at the conclusion of the trial, and none of the jurors testified that the gifts were based on anything that occurred during trial. Furthermore, at most only a few of the jurors were involved in giving the tasteless gifts. None of the jurors testified that the gifts bore any relation to their decision to find Wellons guilty of murder and rape, and they testified that the gifts did not affect their decision to impose the death penalty."

According to the ruling, during the trial, one of the jurors ordered a box of turtle-shaped chocolates for the jury from a friend who ran a candy shop. In addition to the turtles, the friend included a white chocolate penis, "as a gag gift to lighten things up," without knowing the facts of the case. After the bailiff told the juror that the judge wanted to see the gag gift, the juror discreetly gave it to the judge at the end of the trial, while trying to keep it a secret from the rest of the jurors.

An unidentified juror sent the breast-shaped chocolates to the bailiff after the trial ended.

While the judge failed to admonish or discipline those involved and disclose the occurrence to both parties, so they could have made timely objections, the gifts did not factor into the judge's or the jury's consideration of the case, the court concluded.

"We also acknowledge that the ill-advised actions of a few thoughtless jurors could create the perception that this jury was too busy joking around rather than deciding Wellons's fate," the ruling adds. "But these were two isolated incidents in the span of a multi-week trial and we cannot say, on the basis of this record, that the verdicts were tainted."

The three-judge panel also rejected a claim that a brief encounter between the trial judge and the jurors at a restaurant on the day autopsy photos were shown in court compromised the decision process.

"The Georgia Supreme Court correctly assumed the judge was only a passive recipient of a gag gift," Wilson wrote. "Additionally the record does not indicate that the judge showed any partiality during the brief encounter at the restaurant; rather, the record supports the state court's finding that the judge was not biased. She was neutral during the short conversation at dinner and only noted that seeing any autopsy photos would be upsetting. She did not give the jurors any indication as to how this case should be decided."

What's more, the judge did not have any personal interest in the outcome of Wellons' trial, the ruling adds. As for the race bias claim, the judges upheld the Georgia Supreme Court's finding that Wellons had failed to prove purposeful discrimination. Though some of the Caucasian jurors who served were just as reticent to impose the death penalty as the struck African-American jurors, they also expressed reservations about a mental health defense, which better suited the prosecution's case, the opinion states.

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