Cobb death sentence upheld

Killer had argued case was tainted. Jurors had given erotic ‘gag gifts’ to judge and bailiff.

A federal appeals court Wednesday upheld the death sentence against Cobb County killer Marcus Wellons, rejecting claims his case was unfairly tainted because his jurors gave erotic chocolate “gag gifts” to the judge and bailiff.

In a unanimous opinion, the 11th U.S. Circuit Court of Appeals said the record shows Wellons received a fair trial by an impartial jury. Because the gifts, while “tasteless and inappropriate,” played no part in the judge’s or jury’s consideration, Wellons does not deserve a new trial, the ruling said.

“We ... 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’ fate,” Judge Charles Wilson wrote. “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.”

Wellons was sentenced to death for raping and strangling his 15-year-old neighbor, Campbell High School sophomore India Roberts, in 1989.

Two years ago, the U.S. Supreme Court said the erotic gifts raised questions that required further examination. A death penalty case “must be conducted with dignity and respect,” the high court said.

The justices found disturbing a penis-shaped chocolate that was given to Cobb Superior Court Judge Mary Staley and chocolate breasts sent to the court bailiff after the 1993 trial.

In its ruling, the 11th Circuit said Staley neglected to properly handle the situation. She should have admonished or disciplined the jurors who were involved and should have disclosed what happened to prosecutors and Wellons’ lawyers so they could have made timely objections, the ruling said.

Juror Mary Jo Hooper previously told The Atlanta Journal-Constitution that during the trial she ordered a box of chocolate-shaped turtles from a friend who ran a candy shop to give to fellow jurors and court personnel. The friend included the penis-shaped chocolate as a joke and, after a bailiff said the judge wanted to see it, Hooper said she discreetly gave it to Staley after the trial ended.

An unidentified juror sent the breast-shaped chocolates to the bailiff after the trial, the ruling said.