Appeal request for convicted killerBy Brent Curtis Herald Staff | July 19,2008Convicted killer Donald Fell is asking the 2nd U.S. Circuit Court of Appeals for a second, broader, review of his death sentence appeal.
Two weeks after the appeals court upheld Fell's 2005 conviction for carjacking and kidnapping and the subsequent sentence of death for the crime which involved the killing of 53-year-old Terry King on North Clarendon, Fell's attorney filed a petition this week asking for a rehearing of his appeal before the entire 2nd Circuit Court.
Fell's initial appeal was heard by a three-judge panel. His new petition seeks a hearing in front of the 12 active judges who make up the 2nd Circuit Court ó minus, most likely, Judge Peter Hall, who was the U.S. Attorney in Vermont at the time that Fell was charged with his crimes.
Fell's federal public defender, Alexander Bunin, said Friday that he couldn't explain the arguments outlined in the new petition over the phone and he couldn't electronically send copies of the filing from his Albany, N.Y., office either.
Bunin did say that the request was a requirement for a future appeal to the U.S. Supreme Court which he said was likely.
"This is the first federal death sentence in this circuit in more than 40 years, it's not unusual to appeal," he said.
Bunin said he didn't know what the chances were of the appeals court approving a second, broader hearing of Fell's appeal. But Michael Mello, a professor at the Vermont Law School, said it was only a slim chance at best that the court would hear the matter again.
"Everyone asks for it, but hardly anyone gets it," Mello said. "Although I would say there's a marginally greater chance than normal in this case because it's the first direct death sentence appeal in half a century."
Mello said he also doubted the court would be swayed based on the unanimous opinion rendered by the three-judge panel last month.
"It was so tightly reasoned that I think it will be hard to work around," he said. "It was a high-quality piece of legal craftsmanship."
In that decision, the Appeals Court said that the evidence against Fell was strong and there was no indication that Fell's rights were compromised during the trial.
The court did say it was concerned that the government elicited information from witnesses at the trial that Fell had satanic beliefs and tattoos. However, the court found that the information had no effect on the outcome of the trial.
Assistant U.S. Attorney William B. Darrow said Friday he had no comment on Fell's latest petition.
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