The defense has asked U.S. District Judge Geoffrey Crawford for more time to file the motion, which they’d hoped to submit by the end of this week.
According to a notice filed by co-lead counsel John Philipsborn, the defense is still working to collect copies of newspaper articles related to the Fell case. In his notice Philipsborn said the team has put together more than 600 clippings that will be used as exhibits in support of the motion for a change of venue.
The defense plans to include data from a recent Castleton Polling Institute survey of jury-eligible people in the state and an analysis from an expert on the impact of publicity and media content on death penalty cases. The defense is asking for an additional two weeks to file the motion.
“Lawyers frequently seek changes of venue when they believe the jury pool has been saturated with publicity about the case,” said Robert Dunham, executive director of the Death Penalty Information Center, a nonpartisan research group. However, according to Dunham changes of venue are not frequently granted.
The notice filed this week doesn’t indicate where the defense wants the case heard.
Fell and Robert Lee were charged in the 2000 carjacking and killing of North Clarendon resident Teresca King. Lee died in prison the following year. Fell was convicted in 2005 and later sentenced to death. However, the case was overturned due to juror misconduct. A retrial is scheduled for February.
The case has drawn widespread media attention in part because the death penalty is illegal in Vermont. The last execution in the state was in 1954, and capital punishment was abolished 11 years later.
However, this case came under federal jurisdiction because King was kidnapped in Vermont and driven to New York state, where she was killed. The federal kidnapping statute applies when a victim is transported to another state.
In 2001 Fell entered into a plea agreement with the U.S. attorney’s office in Vermont. In exchange for a guilty plea, Fell would be sentenced to life without parole.
According to testimony this summer by Kevin McNally, director of the Federal Death Penalty Resource Counsel Project — a program of the Administrative Office of the United States Courts — Fell’s case is one of two in modern history in which the attorney general — then John Ashcroft — rejected the plea deal and sought the death penalty instead. The other case occurred in Georgia and involved the shooting of a postal worker. The state of Georgia reached a plea agreement that was overturned by then-Deputy Attorney General Eric Holder.
McNally’s testimony was part of a two-week hearing on the constitutionality of the death penalty held in July.
In asking for an extension Philipsborn also noted the Castleton Polling Institute data. The results of that survey have only recently been made available to the defense and will likely be used in the motion, Philipsborn wrote.
“Unlike most state trials in which the jury is drawn from a single county, the jury pool for a federal trial in Vermont is statewide,” said Dunham. “The defense would have the obligation of showing that publicity had saturated the entire jury pool, not just an individual county.”
Rich Clark, director of the polling institute, said he was not at liberty to discuss the results.
The defense will also include an analysis of the potential impact of publicity and media content on the upcoming Fell trial. His lawyers have been working with Ed Bronson, a former professor of political science at California State University, who has been involved as a consultant or expert witness in several high-profile cases including the Boston marathon bombing and the trial of Timothy McVeigh.
In his notice Philipsborn said that due to conflicting capital cases, Bronson had not had time to complete his analysis of the material related to the Fell trial.
“Because Dr. Bronson’s information, analysis, and opinions are important to both the legal arguments and to the factual background for our motion, I believe that we need to have his information available before completing our efforts,” Philipsborn wrote.
