Supreme Court Action Today

The Supreme Court issued two opinions today.  One was of significance to get press coverage, that of Presley v. Georgia (09-5270).  Presley's issue is whether the trial court violated Presley's Sixth and Fourteenth Amendment rights by closing the courtroom during the voir dire of prospective jurors.  The Supreme Court reversed the Supreme Court of Georgia's holding that Presley's rights were not violated.  The Supreme Court noted in its per curiam opinion that the "Supreme Court of Georgia’s affirmance contravened this Court’s clear precedents."  Ouch. 

The trial judge explained to one member of the public, who happened to be Presley's uncle, that the judge planned to use the entire courtroom to hold prospective jurors and he didn't want defendant's relatives mingling with them, possibly overhearing bits of conversation.  Presley presented seating options on appeal that would have allowed for prospective jurors and members of the public to be seated in the courtroom without commingling.  The Georgia Supreme Court said Presley should have presented his seating plan at trial, and absent guiding Supreme Court precedent to the contrary, it was ok to close the courtroom.

The Supreme Court said there was plenty of precedent, citing case after case that affirmed the right to a public trial, both under First and Sixth Amendment grounds, quoting from the opinions and analyzing them in context with each other.  Georgia counsel did argue the possible overhearing of remarks as justification of closing the courtroom.  The Court responded that if this was sufficient to override defendant's constitutional rights, then no voir dire in any case would be open to the public.  The Court left some wiggle room when specific threats or other circumstances could arise where closing would be justified, but said the reasons had to be documented in detail on the record so a reviewing court could conduct sufficient analysis of the action.

The second case, also per curiam, contains some of the most unusual facts presented to a reviewing court.  The case is Wellons v. Hall (09-5731).  The case concerns ex parte communications between jurors, bailiffs, and the judge in a death penalty case.  I couldn't possibly describe the pertinent facts as well as the Court, so I'll let them do that:

From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.  The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims.

* * *

Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death.  Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and 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,” 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense.

The issue in the case was whether defendant could develop evidence regarding these irregularities as a way of challenging his conviction.  The Court of Appeals said no, and his habeas petition was rejected on the rationale that the issue was decided on direct appeal.  As the Supreme Court noted, Wellonswas hampered by a non-existent record.  Counsel had tried to contact jurors, and though he spoke with many of them, no one would speak to the jury-judge-bailiff contacts.  Once again, this case also comes to us from the great state of Georgia. 

The Court ultimately sends the case back to the 11th Circuit for further review as to whether defendant should receive the evidentiary hearing he seeks to resolve the questionable behind the scene activities.  The case is also notable for the sniping between the majority and Justices Scalia and Alito over the procedural issues in the case.  I guess the dissenters are fine with gifts of genitalia and breasts in the shape of chocolate from the jury to the judge and bailiff, as long as the gifts do not sexually excite someone.  That would be obscenity, and not at all an issue in a death penalty case.  [MG]