Appeals court denies appeal based on risqué chocolates
by Marietta Daily Journal Staff and AP News Now
September 20, 2012 01:26 AM | 7122 views | 0 0 comments | 12 12 recommendations | email to a friend | print
Marcus Wellons
Marcus Wellons
Judge Mary Staley
Judge Mary Staley
ATLANTA — A federal appeals court has rejected a death row inmate’s claims that he didn’t receive a fair trial because a juror sent raunchy chocolates to Cobb Superior Court Judge Mary Staley and a bailiff.

The 11th U.S. Circuit Court of Appeals on Wednesday upheld the death sentence of Marcus Wellons, who was convicted in 1993 of raping and strangling 15-year-old neighbor India Roberts, a Cobb County high school sophomore.

The unanimous opinion says Wellons’ case has been “seriously and thoroughly considered” by state and federal courts at every level and concluded that he received a fair trial by an impartial jury. The ruling says, despite the “tasteless and inappropriate” gifts, Wellons doesn’t deserve a new trial.

Mary Wells, a lawyer for Wellons, said she had no comment on the court’s decision.

The U.S. Supreme Court in 2010 set aside a lower court’s ruling upholding the death sentence to allow a review of the gifts.

During the post-trial interviews of the jurors, defense lawyers learned that some jurors gave gag gifts to a bailiff and the judge either near the end of the sentencing phase or immediately after it. The judge received chocolate candy in the shape of a penis and a bailiff was given chocolates shaped like female breasts.

Wellons’ lawyers argued that the gift of the chocolates constituted misconduct by the jury, judge and bailiff.

Cobb Superior Court Judge Staley said the gifts were delivered after the trial, and that she didn’t keep hers.

“The jury was gone, the lawyers were gone, the case was officially over,” she said. “Court personnel brought me a candy box and said the jurors had left it as a gag. I threw it in the trash.”

The 11th Circuit does not condone the acceptance of gifts by judges or bailiffs and said the judge should have admonished the jurors involved and should have told both parties about the gifts.

“The judge here neglected to take such steps,” the opinion says. “Only because we have no doubt that the gifts did not factor into the judge or jury’s ultimate consideration of the case are we able to affirm the denial of habeas relief.”

The 11th Circuit also said that juries bear a heavy burden and that the gag gifts, though intended to provide a moment of levity, were “tasteless and inappropriate,” but do not amount to juror misconduct.

The 11th Circuit also rejected claims of discrimination by Wellons’ lawyers that were based at least in part on the fact that the prosecution had struck three of four black jurors in the jury pool.

According to the Cobb County District Attorney’s Office, Roberts was a neighbor of Wellons’ girlfriend, Gail Saunders, who told him on Aug. 30, 1989, he had to move out because he had become increasingly hostile and abusive. Wellons, who had recently lost his job, bought a one-way ticket to Miami, Fla., for the next day.

Around 8 a.m., as Roberts was leaving for school, Wellons raped and strangled her and tried to dump her body in a wooded area behind the apartment complex.

Although Wellons pleaded not guilty at trial, he never disputed his guilt, instead asking the jury to return a verdict of not guilty by reason of insanity or guilty but mentally ill, the Cobb County District Attorney’s Office said.
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