Judge: Alleged accomplice confession out
Cites Fell’s right to cross examine
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By Alan J. Keays Herald Staff - Published: May 28, 2005
Jurors deciding whether Donald Fell is guilty of capital charges in the killing of a North Clarendon woman won't hear a statement from his alleged accomplice incriminating Fell in the crime.
However, no ruling has yet been made on whether those statements could be introduced during the penalty phase of the case, which would take place if Fell is convicted of the crimes that carry the possibility of the death penalty.
Attorneys for Fell had filed a slew of motions regarding evidence and testimony they are seeking to keep from a jury in their client's upcoming federal trial in the death of Tressa King, 53, in November 2000.
Robert Lee, a co-defendant in the case, accidentally killed himself in a prison cell on Sept. 20, 2001. But when Lee was arrested along with Fell, he allegedly gave statements to police incriminating Fell in King's slaying.
Judge William Sessions this week agreed with the request of Fell's attorney to keep Lee's statements out of the trial.
"The government has indicated that it will not offer the substance of Lee's statements in its case in chief at the guilt phase of the trial," the judge wrote in his ruling released Wednesday. "Rather the government seeks to introduce the fact that Lee made a statement to put Fell's statements in context, to counter an assertion that Fell accepted responsibility without prompting from external factors."
Sessions wrote that the content of Lee's statements is inadmissible during the guilt or innocence phase of the trial.
"However, the existence of the statements and timing of the statements are relevant to put Fell's confession in context," the judge wrote. "Thus, the content of Lee's statements is inadmissible, but the evidence concerning the existence and timing of Lee's statements are admissible."
Fell's attorneys argued that allowing Lee's police statements to be heard by the jury would violate their client's Sixth Amendment right to confront witnesses and cross-examine them.
Sessions did not rule on the admissibility of Lee's statements should the case proceed to the death penalty phase. It wasn't a question he was asked to decide yet.
"If a punishment hearing is necessary, a motion with additional grounds will be filed," Alexander Bunin, Fell's defense attorney, wrote in the motion.
Michael Mello, Vermont Law School professor, said Thursday he was not surprised by Sessions' ruling.
"He ruled the statements are inadmissible at the guilt or innocence phase and I would have been stunned if he did anything other than that," Mello said.
The reason, Mello said, is that there is no way for Fell's defense team to cross-examine Lee.
"The statements are highly prejudicial. If the jury hears the statements, they are likely to focus on them and give them tremendous weight, more weight than really may deserve," Mello said. "The problem with that is Fell's inability to test Lee's confession through cross-examination or any other way in the adversarial process."
Jury selection in Fell's case is currently under way in U.S. District Court in Burlington. The trial is expected to start sometime between mid-June and July 5, once a 12-member jury and additional alternates are selected.
Even though capital punishment is not legal in Vermont, Fell faces the possibility of the death penalty because federal prosecutors have jurisdiction.
Federal prosecutors have taken over in King's case because Fell and the late Robert Lee allegedly carjacked and kidnapped King as she arrived to work in Rutland early on the morning of Nov. 27, 2000, driving her across state lines into New York, and beating her to death as she pleaded for her life.
Fell and Lee were arrested three days later driving in King's car in Arkansas. Fell has been jailed since his arrest. Police alleged the two men went on a killing spree that led to the death of the three people, including Fell's own mother and another man in Rutland.
In a federal complaint filed by an FBI agent shortly after Lee and Fell were arrested in Arkansas, both suspects gave conflicting versions of what happened on the night of the murders.
Lee allegedly told the FBI agent that Fell killed both Charles Conway and Debra Fell, and solely kidnapped and later murdered King.
Fell allegedly told investigators that he slit Conway's throat while Lee stabbed Debra Fell in the back, and that Lee forced his way into King's car and later delivered some of the fatal blows to her.
According to court records filed by prosecutors, Fell initially denied any involvement in the killings. However, 10 minutes after Lee's confession, authorities confronted Fell with Lee's admission and Fell again denied any role in the killings, prosecutors wrote.
"Later that night, Fell contacted a jailor and requested to speak with the FBI agent again. The next morning, Fell made further statements admitting to the murders," prosecutors wrote. "This is one example of how the sequence of the interviews and the fact that Lee gave a statement would be admissible."
Prosecutors added that while they will not offer the substance of Lee's statements at trial, the fact that Lee confessed and Fell was then confronted with that confession play an role in understanding Fell's actions and statements.
Sessions, in his 28-page decision this week, also issued a mixed ruling on a request by prosecutors to keep from introducing at any stage of the trial information about unsuccessful plea negotiations in the case.
U.S. Attorney General John Ashcroft in 2002 rejected a plea deal that would have spared Fell's life.
The deal would have required Fell to plead guilty to charges of kidnapping with death resulting in exchange for a lifetime jail sentence with no chance for parole.
"Overall, it is clear to the court that Fell should not be allowed to introduce the proposed plea agreement or any other evidence concerning the government's statements during plea negotiations," Sessions wrote. "This evidence has little or no relevance and is likely to confuse the jury. Moreover, admitting this evidence would discourage similar negotiations in the future."
However, the judge said, Fell's offer to plead guilty is "relevant to the mitigating factor of acceptance of responsibility" and would be admissible if the case reaches a penalty phase.
Contact Alan J. Keays at alan.keays@rutlandherald.com.
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