A federal judge in Vermont will hear arguments for convicted killer Donald Fell’s motion to set aside and retry the death sentence case against him.
Fell, the first person in more than 50 years to receive a death sentence in Vermont, has appealed the verdict twice without success and sought a hearing before the U.S. Supreme Court, which decided not to review the case.
His latest challenge to his sentence was filed almost two years ago and contained close to 350 pages of arguments ranging from ineffective counsel and prosecutorial misconduct to contentions of misconduct on the part of a number of jurors.
Now, Judge William K. Sessions III, who presided over Fell’s trial, has scheduled a hearing in U.S. District Court in Burlington on March 5 to consider Fell’s request and the hundreds of pages worth of opposition filed by federal prosecutors.
Fell was convicted in the 2000 abduction and beating death of Terry King, who was kidnapped outside Price Chopper supermarket, where the 53-year-old grandmother worked.
One of the more unusual arguments listed in Fell’s appeal deals with what defense attorneys described as one juror’s unsanctioned trip to Rutland during the trial to inspect that crime scene as well as an apartment house on Robbins Street where police say Fell and his alleged co-defendant, Robert Lee, killed Fell’s mother Debra Fell and her friend, Charles Conway, hours before kidnapping King.
Lee died before going to trial on charges identical to the ones brought against Fell.
The juror, identified by defense attorneys simply as juror #143, reported what he saw to other jurors in the case.
In a statement the juror provided to Fell’s defense attorneys Dec. 19, 2010, the man talked about the impressions he drew from the scenes and the weak lighting outside Price Chopper where Fell and Lee waited, according to prosecutors, to highjack a car at gunpoint.
Talking about Debra Fell’s apartment, the juror told defense attorneys: “The mother’s neighborhood wasn’t great but it was OK. The house was decent. She was just trying to live her life.”
If those kinds of impressions were related to other jurors, the information may have tainted the outcome of the case and undermined the arguments of defense attorneys who argued during the sentencing phase of Fell’s trial that he had an abusive home life.
In his motion for a new trial, Fell’s attorneys wrote: “The violence and alcoholism in Mr. Fell’s home were key features of the defense mitigation case. Juror #143’s observations of 135 Robbins St. and the surrounding neighborhood from an outsider’s perspective gave him a vantage point from which to form a view about Mrs. Fell that ran counter to the evidence presented about her violent tendencies and chronic alcoholism, and Mr. Fell’s unstable home life.”
But in their response, federal prosecutors wrote that jurors in the case had already seen photographs of the locations the juror visited.
“The extrinsic information obtained by juror 143 added nothing to the evidence already presented at trial through testimony and photographs. The nature of the neighborhood in which Debra Fell lived was apparent from such photographs. So was the appearance of the Price Chopper parking lot... Such information is insufficient to establish prejudice,” prosecutors with the U.S. attorney’s office in Vermont wrote.
Later in the arguments presented by Fell’s attorneys, the same juror is described as having coerced another juror into changing her vote by pointing a shotgun at her.
The gun was unloaded and was a key piece of evidence in the case — it was the gun that Lee and Fell carried from Robbins Street to Price Chopper the night King was abducted.
The gun was empty. But the pair pointed it at King — who presumably didn’t know it was unloaded — during the kidnapping, prosecutors said.
But the fact that the gun was unloaded during the abduction was weighing on the mind of a female juror during deliberations over whether to sentence Fell to death or life imprisonment, Fell’s attorneys wrote.
Juror #143 reportedly called for the weapon, checked to make sure it was unloaded, then cocked it and pointed it at the female juror, according to the defense attorneys’ filing.
“I cocked and pointed it at her and she squirmed. I said, ‘That’s what they did. You were scared even though you knew it wasn’t loaded,’” Juror #143 was quoted as saying to Fell’s attorneys.
That demonstration robbed Fell of a fair trial, defense attorneys argued.
“After Juror #143 pointed the shotgun at the juror, she acquiesced to voting for Mr. Fell’s death. It would deprive him of his Sixth and 14th Amendment rights to impose a death sentence on Mr. Fell that was obtained through such coercion.”
Federal prosecutors argued that the demonstration did not constitute an intimidating act designed to coerce the woman’s vote. And moreover, they said established court rules restrict vacating verdicts based on a statement by a juror about what was said during deliberations.
Vermont Law School Professor Cheryl Hanna said Friday she agreed the court was unlikely to act on matters that took place during jury deliberations.
But the juror trip to scenes in Rutland could have an impact on the case if the information he gathered had the potential to harm Fell’s right to mount a defense at trial.
“It’s a very high hurdle for the defense but there could be a basis for a conviction to be overturned,” Hanna said. “If what was learned and brought back was substantial enough to be harmful to Fell, then maybe. But it could also be found to be nonprejudicial.”
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