Marcus A. Wellons was tried and convicted for rape and murder in Georgia.He was sentenced to death. They must have a strange sense of humor in Georgia. At the end of the trial the jurors gave the judge a chocolate penis and the bailiff a chocolate imitation of a women’s breasts. I do not know what the judge or the bailiff thought but the United States Supreme Court was not amused.

But before the matter got to the Supreme Court Wellons moved for formal discovery and an evidentiary hearing regarding the incident. First he raised the issue on appeal. But he was told that was inappropriate because there was not a written record. Then he raised the issue on a writ of habeas corpus in the state court but he was told that since the issue was decided on appeal a writ of habeas corpus was inappropriate. Finally he went into Federal Court. By the time he got to the Eleventh Circuit Court of Appeals he was told that since the issue was decided in the state court he could not raise it in Federal Court and in any case he loses on the merits.

The United States Supreme Court saw it differently. First, between the time the Eleventh Circuit decided the case and the Supreme Court heard the case, it decided Cone v. Bell, ruling that the fact that the question was raised on direct appeal does not provides an independent and adequate state ground for denying review on habeas. All agree that the Eleventh Circuit violated what was decided in the Supreme Court Cone’s decision. Second the Supreme Court in reviewing the work of the lower courts came to the conclusions that the lower courts did not answer the question as to whether Wellons gets formal discovery and an evidentiary hearing. Rather they attempted to answer whether the conviction should be reversed for the jury’s bad judgment. But as the majority points out that question cannot be answered until after the discovery and the evidentiary hearing is completed. They therefore remanded the case to the Eleventh Circuit to consider the Cone issue.The minority (Roberts, Thomas, Scalia, and Alito) feel that since the Eleventh Circuit ruled not only on the Cone issue but also on the merits that the decision on the merits remain and a remand is inappropriate.