[T]he defense team in the upcoming retrial of Donald Fell is asking that the proceedings be moved to another state or at a minimum outside of Rutland County to ensure that their client receives a fair and impartial hearing.
The motion for change of venue argues that coverage of the case has been “pervasive and legally prejudicial” and that a large percentage of jury eligible individuals have already formed opinions about Fell and his culpability.
Citing a Castleton Polling Institute Survey of jury eligible individuals carried out in August and September, the defense says that “pre-judgment of Mr. Fell’s guilt is very high” particularly in certain areas of the state.
In addition, the defense argues that the proximity of the courthouse to some of the events alleged to have taken place poses further problems for any prospective jury.
“Particularly in Rutland where the Court now plans on holding trial, a large percentage of eligible jurors know the case, and of those, the vast majority are of the opinion that Mr. Fell is guilty, and a substantial number of those polled believe that he should receive the death penalty,” the defense wrote.
The 111-page motion was filed in Rutland District court after Judge Geoffrey Crawford denied an appeal to place under seal all materials related to a request for a change of venue. On Tuesday Fell’s defense asked the court to seal the motion and any exhibits or expert testimony supporting it in order to avoid provoking “further inflammatory and potentially prejudicial coverage.”
A separate motion asking the court for permission to file an oversize brief allowing them to include the copious documentation in support of a change of venue was granted. Fell’s attorney John Philipsborn wrote that the oversize brief “was necessitated by the need to provide a specific factual framework for the arguments presented, and to discuss the media coverage in detail.”
The Fell case is now more than 15 years old and has generated substantial media coverage and public interest. Fell and his co-defendant Robert Lee were charged in the carjacking and murder of North Clarendon resident Teresca King in November 2000. Lee died in prison the following year. Fell was convicted in 2005 and later sentenced to death but the ruling was overturned due to juror misconduct. A retrial is scheduled for February 2017.
In the motion for a change of venue Philipsborn said he had reviewed media coverage going back to the days after the murder occurred and before Fell and Lee had been apprehended. They were arrested in Arkansas several days after the killing.
“In order to illustrate the pervasive nature of the coverage, the repetitive use of certain words and phrases to characterize the crimes alleged, the nature of the case, the views expressed about the case by various persons, and the implications of the case throughout Vermont, it was necessary to excerpt a number of newspaper articles from the more than 15 years worth of coverage,” Philipsborn wrote.
The defense is in the somewhat delicate position of filing a motion that includes documentation that they argue may contain “potentially prejudicial material.” At a minimum the defense argued they would be remiss in not asking the court to seal the materials filed as part of the motion.
“It is not our intention,” Philipsborn wrote, “to provoke or otherwise encourage further coverage that may undermine the party’s right to a trial by a fair and impartial jury.”
The motion for change of venue includes an analysis of the publicity surrounding the case by Dr. Ed Bronson who has testified in numerous high profile trials. According to the motion, Bronson contends that the “coverage of the fell case has been the most inflammatory that he has seen outside of the Boston Marathon and Oklahoma City Bombing cases.”
Vermont’s last execution was carried out in 1954 and the state abolished the death penalty eleven years later. In 2008 WCAX conducted a poll of 400 Vermonters and asked it they supported mandatory minimums for certain crimes, including murder, and if they agreed with the mother of Michelle Gardner-Quinn, a UVM student who was raped and murdered in 2006, that the death penalty should be reinstated. According to the WCAX poll 68 percent of respondents said yes and 29 percent said no. Five percent were undecided.
Fell’s defense is requesting that the trial be moved to either the Northern or Southern district of New York State or out of the Rutland courthouse. If the trail is held in Vermont they are also requesting that the jury pool be restricted to to the Northern and Southeastern divisions of the state.