[T]he defense team for Donald Fell is asking the court to order a law firm to release files generated in connection with Fell’s co-defendant, Robert Lee.
Fell and Lee were accused of kidnapping and killing North Clarendon resident Terry King in November 2000. Lee died in prison the following year.
In 2005 Fell was convicted of the murder and later sentenced to death. However the ruling was overturned due to juror misconduct. A retrial is scheduled for early next year.
According to a motion filed in U.S. District Court this week, the legal documents could contain evidence admissible in the guilt and penalty phase of the trial. Last October, Lee’s father signed a waiver authorizing the release of the file and other records.
At the time of his detention, Lee was represented by Vermont attorneys John Pacht and Bradley Stetler. Pacht, formerly a partner with the firm Hoff Curtis in Burlington, was appointed to Vermont Superior Court in January.
Robert Katims, an attorney at Hoff Curtis, said the files are still at the firm. “We wouldn’t turn them over absent a court order that said we need to,” Katims said. “Attorney-client privilege is pretty sacrosanct and something we take very seriously.”
Stetler, a criminal defense attorney with Stetler, Allen & Kampmann, said when he and Pacht were co-counsel they each maintained their own files. He declined to comment further.
In its motion the defense argues that the file could undermine the government’s contention that Fell was the ringleader. The two were childhood friends, and in an earlier motion the government argued, “Mr. Fell was the dominant and manipulative leader; and Mr. Lee was the obedient, conditioned, follower.”
However, the defense says this characterization may not hold up.
“The file could contain evidence that would not only contradict the government’s theory that Mr. Fell manipulated his submissive and compliant friend Mr. Lee, but could also show that Mr. Lee was actually the major or sole participant in the crimes, or that it was actually Mr. Lee who manipulated Mr. Fell into committing the crimes,” the motion says.
Attorney-client privilege, while not protected under the Constitution, has generally been upheld by the courts. However in some cases the court has ruled that the privilege is not absolute.
The Second Circuit has recognized that in criminal cases exceptional circumstances can overcome the attorney-client privilege. In a 2001 case the court ruled that attorney-client privilege would not be upheld if the exclusion of evidence would “render the trial fundamentally unfair.”
Fell’s lawyers argue that the circumstances of this case are exceptional. Fell could be facing the death penalty. His co-defendant has been dead for 15 years. And the government is seeking to admit Lee’s statements in the penalty phase of the case.
According to the motion, “The government is attempting to use a dead co-defendant’s hearsay statements to secure Mr. Fell’s conviction and execution and there is substantial reason to believe that the co-defendant’s statements to his legal defense team would contradict the statements being relied upon by the government.”
In addition, Fell’s attorneys argue that the “exceptional nature of death penalty cases” warrants the release of the files.
In July U.S. District Court Judge Geoffrey Crawford, who will preside over the retrial next year, held two weeks of hearings on the constitutionality of the death penalty. He has not yet issued a decision.