Procedurally Barred: Catch-22?

In a 5-4 decision Thursday certain justices of the Supreme Court made their censure known in no uncertain terms, lost as it may have been in the midst of the Federal Election Commission upset.  In Wellons v. Hall, the majority began the unsigned decision with gravity, "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."

In 1993 Wellons was convicted and sentenced to death in Georgia for the brutal 1989 rape and murder of a teenage girl of his close acquaintance. No argument or defense of actual innocence was ever presented in this case, as Wellons was caught while attempting to cover up the crime.

The decision from the Court is not about Wellons or the crime, nor is it even really about the capital sentence, although that lends the solemnity and focus that this case received. The decision remands the case to the 11th Circuit to review the writ of habeas corpus on the merits, which in this case means considering evidentiary hearings and discovery about misconduct by the judge and jury who sentenced Wellons to death.

Plainly, the defense learned that a juror presented sexually explicit gifts of chocolate male genitalia to the judge and chocolate breasts to the bailiff during the sentencing portion of the 1993 trial. These gifts, and encounters between the judge and jurors outside of the court, were never entered into the official record by the judge. Defense counsel only learned of these during post-trial interviews with the jurors. Still, the immediate request for a retrial and judicial recusal were dismissed, again by the judge in question.

As Wellons has searched for more information on these disturbing events, he has been repeatedly barred for procedural reasons. The Georgia Supreme Court and the 11th Circuit, for their part, ultimately found that the lack of evidence in the record created by the judge in question was the sticking point passed which they would not look. Procedurally barred:  catch-22?

Scalia and Thomas dissented on procedural grounds; Roberts and Alito did so on the merits. The dissenters are missing the significantly broader point: the tools of justice ought to be pristine. When they are sullied, it is cause for concern and, from those with the highest power, censure and review.

In sum, a judge and jury were somehow involved in some sort sexually suggestive byplay while in the process of sentencing a man to death for the rape and murder of a 15-year-old girl. This bare set of facts demands condemnation.

And yet, the unwillingness of the courts of Georgia, the 11th circuit, and the four dissenters from the Supreme Court to address this impropriety in any meaningful way bespeaks a knee-jerk defense of status quo. The majority cleared the procedural path in handing this back to the 11th circuit, but where the merits will take it remains to be seen.

Were this case not a capital case, would there still be blinders to the deeper issue of possible judicial misconduct? By placing layers of process concerns in front of justice, do some avoid digging deep and risk brushing up against the difficult issues?

Our justice system in its most difficult duty of evaluating the most terrible crimes requires the highest level of professional responsibility: for the sake of the victims, for the accused and convicted, but even more so for all of our society which sanctions these proceedings. Justice must be meted out with clean hands at the very least. Anything less, and justice is nothing but capricious, no matter the punishment and no matter the crime.