In his 57-page decision in mid-December, Crawford acknowledged serious flaws in the way capital cases are tried in this country but concluded that it was not a question for the lower courts to settle.
Fell’s defense team argues otherwise. Lead counsel Michael Burt says Crawford should amend his ruling to allow for an interlocutory appeal of the death penalty decision and that all other matters should be put on hold during that time.
The defense motion says the court’s ruling, which “defers any remedial action to the Supreme Court, should be vacated and the relief sought granted such that the notice of intent to seek the death penalty is stricken in Donald Fell’s case.”
The legal question focuses on whether such an appeal can be granted in a capital case as opposed to a civil case. Such action is typically reserved for civil cases; however, exceptions have been made, and in a recent ruling the 1st Circuit referred to a “lack of uniformity” that has left the question unsettled.
In the motion Fell’s defense contends that the case meets all of the requirements for a certificate of appeal and that Crawford’s own careful review of the facts in his death penalty decision should compel him to “remedy the constitutional violation that the court found.”
Fell was charged in the 2000 killing of North Clarendon resident Teresca King and was convicted in 2005 in federal court. He was later sentenced to death, but the verdict was overturned due to juror misconduct.
While not ruling the death penalty unconstitutional, Crawford found that it was applied in an arbitrary manner and that protections put in place 40 years ago to prevent a variety of injustices had failed.
Perhaps in anticipation of the government’s argument — it has until Jan. 10 to respond — the defense asserts that denying an appeal at this stage will not speed the resolution of the case.
“It is misleading in the extreme in the circumstances of the present complex capital case to hold out to the victim’s family the promise of ‘closure’ upon the mere return of a jury verdict,” the defense writes, “when the government knows full well that this case, regardless of whether a pretrial appeal is authorized, is destined for years, if not decades, of future appeals and … proceedings.”
Members of King’s family have attended every hearing for the past 16 years.
The defense also suggests the integrity of a future conviction could be at stake if an appellate court later finds that the death penalty should have been ruled unconstitutional under the Eighth Amendment’s protections against cruel and unusual punishment.
In previous rulings Crawford denied a motion to delay the trial after hearing arguments from the defense attorneys that they had not had enough time to prepare. He also denied a motion to withdraw as Fell’s counsel if the request for more time was not granted.
At a recent status conference during which the motion to postpone was discussed, Crawford appeared frustrated with the amount of time the pretrial hearings have eaten up. Though he sympathized with the defense attorneys’ demands — both are involved in other capital cases — he said the hearings had dragged on for two years and that it was time to bring the matter before a jury.
On Wednesday, the day after the defense filed its motion seeking an appeal of the death penalty decision, Crawford issued an order to draw a jury pool of 1,800 names from all divisions within the state of Vermont. According to the order, jury selection is scheduled to begin Feb. 13.