The Eleventh Circuit Court of Appeals has affirmed the denial of a death row prisoner’s habeas corpus petition that contended he was denied a fair trial by an impartial judge and jury because the jurors gave inappropriate gag gifts to the judge and one of the bailiffs.

The habeas proceeding involved Georgia death row prisoner Marcus A. Wellons, who was convicted of the murder and rape of a fourteen-year-old girl in 1989. During his trial, Wellons did not dispute that he had killed and raped the victim; rather, he claimed he was either not guilty by reason of insanity or guilty but mentally ill. After finding him guilty, the jury recommended a sentence of death for the murder and life for the rape.

Defense counsel learned during post-trial interviews that some jurors gave gag gifts to the judge and a bailiff either near the end of or immediately following the penalty phase of the trial. The judge received chocolate candy in the shape of a penis while the bailiff received chocolate in the shape of female breasts. Wellons’ counsel also learned that when the sequestered jurors dined at a local restaurant, the judge had spoken to them.

Motions for a new trial and for recusal of the judge were denied, Wellons’ convictions were affirmed on appeal and the Supreme Court denied review. Likewise, a state habeas petition was denied. After the federal district court denied Wellons’ habeas petition, the Eleventh Circuit affirmed. This time, however, the Supreme Court granted certiorari and the matter was subsequently remanded for an evidentiary hearing on the “disturbing facts of this case.” The district court again denied relief and Wellons again appealed.

As for the encounter at the restaurant, most of the jurors testified that the judge had waved or nodded or made a brief comment. One juror recalled the encounter that occurred on the day the jury saw the autopsy photos, and the judge commented that she understood the jurors were upset.

Four of the jurors said they did not become aware of the gag gift to the judge until later. As it turned out, a friend of one of the jurors owned a confectionery shop, and the juror asked her husband to ask the friend to make chocolate turtles for the jury. The friend, who was unaware of the serious nature of the case, included the gag gifts to “lighten things up.” On the last day of the trial, the gifts were given to the judge and bailiff.

The Eleventh Circuit cited precedent holding that an ex parte communication alone is insufficient to overturn a conviction. Additionally, the record did not indicate the trial judge had shown partiality during the brief encounter with the jurors at the restaurant, so habeas relief on that issue was properly denied.

Further, the Court of Appeals found the gag gifts did not call into question the impartiality of the jury. It held the “unfortunate giving of these tasteless gifts” was “inconsequential to the verdict” and played no role in the judge’s or jury’s consideration of the case. The jurors testified that the gifts, which were given at the conclusion of the case, had nothing to do with anything that occurred during the trial.

The appellate court noted judges or bailiffs should not receive gifts from the jury. “Trial judges are expected to handle these situations, sternly admonish or discipline those involved, and disclose such occurrences to each party so that timely objections can be considered and made,” wrote the Eleventh Circuit. While the judge had failed to do so in this case, the Court of Appeals found the jurors’ testimony did not indicate Wellons had received an unfair trial.

“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 appellate court stated. “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.”

Accordingly, the district court’s denial of Wellons’ habeas petition was affirmed.

A petition for writ of certiorari, filed with the U.S. Supreme Court, was denied on October 7, 2013. Wellons remains on Georgia’s death row. See: Wellons v. Warden, Georgia Diagnostic and Classification Prison, 695 F.3d 1202 (11th Cir. 2012), cert. denied.

(Reprinted with Permission from Prison Legal News)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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