By Robert Barnes
Washington Post Staff Writer
Wednesday, January 20, 2010; A03
"From beginning to end," the Supreme Court intoned Tuesday, "judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."
And so a majority of the court decided that a trial in which jurors presented the judge with an "edible chocolate penis" and the bailiff with a pair of chocolate breasts deserved a closer look. It told the U.S. Court of Appeals for the 11th Circuit to examine more closely the trial in which Marcus Wellons received the death penalty for the rape and murder of 15-year-old India Roberts in suburban Atlanta in 1989. The appeals court upheld the death sentence the first time around.
"Petitioner's allegations and the unusual facts raise a serious question about the fairness of" the trial, said the unsigned opinion that reflected the views of Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.
The "unusual events going on behind the scenes," the court said, included unreported contacts outside the courtroom between the judge and jurors and the fact that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts."
The judge did not report the gifts, and Wellons's lawyers learned about them only when preparing his appeal.
"Neither Wellons nor any court has ascertained exactly what went on at this capital trial or what prompted such 'gifts,' " the opinion said. "Wellons has repeatedly tried, in both state and federal court, to find out what occurred, but he has found himself caught in a procedural morass."
Georgia's appeals courts did not consider the gifts when Wellons first appealed, because they were not part of the judicial record. Subsequent reexaminations of Wellons's sentence in both state and federal courts have said procedural rules barred their ordering discovery about the gifts.
The Supreme Court's opinion criticized the 11th Circuit panel for saying Wellons's claims of misconduct were "speculation."
"Had there been discovery or an evidentiary hearing, Wellons may have been able to present more than 'speculation' and 'surmise,' " the opinion said.
The court's four most consistent conservatives criticized their colleagues for abusing their own procedures. The majority told the lower court to reconsider the case in light of a recent Supreme Court precedent, but Justices Antonin Scalia and Clarence Thomas said that should not affect the 11th Circuit's decision. They said it was disrespectful to send the case back because of an "inconsequential imperfection" in the lower court's opinion.
Justice Samuel A. Alito Jr., joined by Chief Justice John G. Roberts Jr., said he agreed with the majority that the "strange and tasteless gifts" raised "troubling" concerns. But he, too, objected to the "improper" way the majority sent the case back to the 11th Circuit.
The case is Wellons v. Hall.
In a separate, unsigned opinion, the court took on another procedure case from Georgia. It ruled that the Sixth Amendment's guarantee to the accused of a "speedy and public trial" meant that the public must be allowed into the part of the trial where potential jurors are questioned. The court had already ruled that the First Amendment meant such procedures should be open.
The court repeated that trial judges must consider all alternatives before moving to close a trial. "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the opinion said.
In reversing the Georgia Supreme Court, the opinion said the outcome was so apparent from its earlier rulings that it need not accept the case for full briefing and arguments. Thomas and Scalia dissented, saying such sentiment "belittles the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the court so confidently relies today."
The case is Presley v. Georgia.