• Fell could face death
    ALAN J. KEAYS Herald Staff | March 03,2004
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    A federal appeals court has cleared the way for prosecutors to seek the death penalty for accused killer Donald Fell.

    The 2nd Circuit Court of Appeals on Tuesday overturned a ruling by U.S. District Court Judge William Sessions that declared the federal death penalty unconstitutional for Fell, who is accused of killing Tressa King of North Clarendon more than three years ago.

    Federal prosecutors had appealed Sessions' ruling to the appeals court in New York City.

    "The office's reaction is that 2nd Circuit of Appeals accepted the arguments we were making," U.S. Attorney for Vermont Peter Hall said Tuesday evening.

    Hall said the case will now be put back on track for a trial. No trial date has been set.

    Federal public defender Alexander Bunin, Fell's attorney, could not be reached Tuesday evening for comment. Fell's defense team still has avenues of appeals, said Michael Mello, a professor at Vermont Law School and an expert on capital punishment.

    He said the 22-page ruling Tuesday by a three-member panel of the appeals court could be appealed to the full 2nd Circuit Court of Appeals.

    If that fails, Mello said Fell's attorneys could ask the U.S. Supreme Court to take up the case.

    "You have one of the most highly respected district court judges coming down on one side of this issue and you have one of the most highly respected federal circuit court of appeals going the other way," Mello said. "They could argue that you, the Supreme Court, need to decide it."

    The Fell case has been working its way through the legal system for more than three years.

    King, 53, of North Clarendon, Charles Conway, 44, and Debra Fell, 44, both of Rutland, were murdered on Nov. 27, 2000.

    The murder suspects, Fell and Robert Lee, were 20 and 21, respectively, at the time of the triple murders. The two were allegedly high on crack cocaine when police said they stabbed Conway and Debra Fell, Donald Fell's mother, in her apartment in Rutland.

    Police said Fell and Lee then carjacked King in the parking lot of Rutland Shopping Plaza early in the morning when she arrived for work. Police said they then beat King to death in Duchess County, N.Y., as she pleaded for her life. Fell and Lee were arrested three days later in Arkansas.

    Lee later hanged himself in his prison cell in September 2001.

    Vermont does not have a death penalty. However, since King's death involved the crossing of state lines, the federal government has jurisdiction in the case and the federal death penalty applies.

    Barbara Tuttle of North Clarendon, King's sister, said Tuesday she was pleased with the appeals court ruling.

    "Needless to say, we've been waiting for it," she said. "We were glad the judges ruled in our favor."

    Tuttle said she wants to see the case proceed to trial.

    "It's been three years, over three years now, since my sister has been kidnapped and murdered," Tuttle said. "We just want it go to trial and to let 12 jurors decide what his fate will be. That's what we've wanted from the beginning."

    The case had been on hold pending the outcome of prosecutors' appeal of Sessions' decision.

    Sessions wrote in his decision - handed down in September 2002 - that the federal death penalty denies defendants' right to due process.

    He wrote the law allows evidence and procedures that could not be used at trial to be used for sentencing people to death, specifically in the Fell case a statement Lee gave to authorities after his arrest.

    Sessions also wrote that the federal death penalty statute prevents defendants convicted of capital crimes from questioning witnesses before being sentenced to death.

    The judge said that prosecutors would not be allowed be able to introduce at trial a confession by Lee because he is dead. However, Sessions wrote that under the federal law the confession would be admissible during the sentencing phase.

    Lee had not admitted to killing any of the three victims, according to court records. He allegedly told the FBI he was with Fell when Fell killed Conway and Debra Fell, and later beat King to death.

    The appeals court said Sessions could simply exclude evidence he believed should be inadmissible.

    "If the district court were to conclude that admission of statements by Fell's deceased co-defendant would unfairly prejudice Fell, it would be obligated by the (Federal Death Penalty Act) to exclude them," the appeals court wrote. "We, of course, take no position on the question."

    Mello said the appeals court told Sessions the federal death penalty law didn't require him to allow evidence into the penalty phase he believed should not be admitted.

    "The appeals court said trial judges always have the discretion under the federal death statue, and based on a whole bunch of other authority, to exclude junk evidence," Mello said. "It remains for trial judges to exercise judgment, discretion and, I would add, common sense to make sure garbage evidence doesn't come in."

    Mello, a death penalty opponent, described the ruling as a "mixed bag." He said prosecutors can move ahead with the case, but possibly without a key piece of evidence during the penalty phase, the alleged statement by Lee telling the FBI that it was Fell alone who killed King.

    "This decision is a mixed victory for the government," Mello said. "There is nothing in this opinion that even indicates that Sessions should allow the co-conspirator's statement to come into evidence. The 2nd Circuit is absolutely neutral on the issue."

    Mello added there were arguments the defense team could raise on appeal.

    "You can argue what Sessions identified was a structural flaw, a design defect in the statute itself," Mello said. "They could argue that the co-conspirator evidence in the Donnie Fell case was emblematic of a larger structural defect in the federal death penalty."

    Mello said he had no idea how the rest of the case would play out.

    "We're genuinely in uncharted waters," he said.

    Contact Alan J. Keays at alan.keays@rutlandherald.com.
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