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Posted: 4:26 p.m. Friday, Sept. 7, 2012

Court once again considers bawdy gifts in death case

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death row photo
Marcus Wellons

By Bill Rankin

The Atlanta Journal-Constitution

Cobb County killer Marcus Wellons could not have received a fair trial because the same jurors who sentenced him to death also gave erotic chocolate “gifts” to the trial judge and a bailiff, a lawyer argued Friday.

“This is a travesty,” Wellons’ lawyer, Mary Elizabeth Wells, told three judges on the 11th U.S. Circuit Court of Appeals in Atlanta. “This was a death penalty case. How can anyone say this was dignified?”

She added, “This is even embarrassing to discuss in open court. This is not dignified.”

State attorney Beth Burton countered there was no evidence showing that a penis-shaped chocolate given to Cobb Superior Court Judge Mary Staley and a breast-shaped chocolate given to bailiff Loretta Perry had any bearing on the jury’s deliberations during the 1993 trial.

“Poor judgment?” Burton asked. “Yes. A partial jury? No.”

Wellons sits on death row for raping and strangling his 15-year-old neighbor, India Roberts, in 1989. He abducted the Campbell High School sophomore on her way to school.

At the conclusion of Wellons’ 1993 trial, jurors gave the candy to the judge and bailiff — revelations of which have caused Wellons’ execution to be delayed for well over a year.

In early 2010, the U.S. Supreme Court put a halt to Wellons’ expected execution, saying the disturbing facts of the case raised serious questions and further examination. From beginning to end, a death penalty case “must be conducted with dignity and respect,” the high court said.

The case was sent back to Senior U.S. District Judge Willis Hunt, who allowed all parties and the 10 surviving jurors to be questioned about what happened.

Juror Mary Jo Hooper, who gave the anatomical candy to Staley, told The Atlanta Journal-Constitution in a prior interview that during the trial she ordered a box of chocolate-shaped turtles from a friend who ran a candy store to give to fellow jurors and court personnel. The friend, knowing the jury was sequestered, included the penis-shaped chocolate as a joke.

When the package arrived, a bailiff checked it and saw the penis-shaped candy and reported it to Staley, who relayed that she wanted to see it, Hooper said. When the trial was over, Hooper said, she discreetly gave the “gift” to Staley.

The breast-shaped chocolate was sent by another juror to the bailiff after the trial and was apparently the result of a lighthearted conversation jurors had over dinner. No juror has claimed responsibility for this item.

In his order, Hunt said the attempts at humor “fell flat in spectacular fashion,” but he added there was no evidence to show the gifts had any bearing on the jury’s deliberations. “Nowhere does the Constitution guarantee a jury made up entirely of smart people,” he added.

The appeals court, which considered Hunt’s order Friday, is expected to issue its decision in the coming months.

During the arguments, all three appeals court judges — Joel Dubina, Gerald Tjoflat and Charles Wilson — seized on the fact there was no evidence to show that the lewd gifts had any influence on the jurors’ decision-making. But Tjoflat and Wilson appeared disturbed by the jurors’ conduct and questioned whether it tainted the somber proceedings.

An argument could be made, Wilson said, that “this is terrible what these jurors did. This trial was not conducted with dignity and respect. These jurors didn’t take their jobs seriously enough.” But he also questioned whether the gifts constituted a constitutional violation requiring a new trial.

Wellons’ lawyer, Wells, said she did not know whether the lewd gifts influenced the jury’s deliberations. “The question here,” she said, “is whether the jury conducted itself with dignity and respect in a death penalty trial.”

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