Fell and Robert Lee were charged with kidnapping and killing Teresca King in 2000 after allegedly killing Fell’s mother and an acquaintance in Rutland.
Lee died in prison before the case went to trial. Fell was convicted and sentenced to death, but the verdict was overturned because of juror misconduct. His retrial is set for late March.
If he is convicted, the dynamic between the two men, who were childhood friends, is expected to play a prominent role in sentencing. Fell’s defense argues that Lee may have acted alone in the crimes, or at least manipulated Fell into participating. Prosecutors paint Fell as the ringleader.
U.S. District Judge Geoffrey Crawford ordered former lawyers for Lee to turn over any documentation involving statements he made to them or investigators. “The statements subject to disclosure include both the events giving rise to the charges in this case and the prior relationship between Mr. Lee and Mr. Fell,” Crawford wrote.
The judge did not address the Fell defense team’s broader request for other documents such as Lee’s medical, psychological, social services, educational, court and government records that may be contained in the attorneys’ files.
The judge also denied a defense request, supported by Lee’s counsel, that if the records were disclosed they should be provided only to Fell’s team. “The information is potentially important in the case,” Crawford wrote, “and both sides are entitled to see it.”
He previously granted a government motion to allow Lee’s statements to law enforcement to be used in the final phase of the trial. According to court documents, Lee made oral and written statements to law enforcement that touch on his role in the killings. They include two handwritten confessions, a recorded interview, letters to his family, and writings and drawings completed while he was in prison.
“All four statements implicate Mr. Fell in the three killings,” Crawford wrote.
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 last year.
Stetler declined to comment for this story.
Fell’s attorneys argued that Lee’s legal documents and other files could contain important information regarding the nature of the relationship between the two men. Fell and Lee were childhood friends and grew up together in Wilkes-Barre, Pennsylvania. By the time of King’s killing, according to court documents, “they had known each other for almost their entire lives, and they were practically inseparable.”
The government has maintained that “Mr. Fell was the dominant and manipulative leader; and Mr. Lee was the obedient, conditioned, follower.”
In their motion seeking a subpoena for the records, the defense argued that Lee’s legal files could not only contradict the government’s position that Fell was the ringleader but 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.”
In 2015 the defense obtained a waiver from Lee’s father authorizing the release of his records.
However, those records are subject to attorney-client privilege, and the courts have been reluctant to undermine that bedrock legal principle even after death. Crawford noted that the Supreme Court upheld attorney-client privilege in a 1998 case related to an effort by Kenneth Starr, the independent counsel who investigated President Bill Clinton, to subpoena records of a conversation between top Clinton aide Vincent Foster and an attorney nine days before Foster died of suicide.
“The court followed the overwhelming majority of judicial decisions in recognizing that the privilege survives the client’s death,” Crawford wrote.
That decision, however, left open the possibility of an exception when the constitutional rights of a criminal defendant are at stake. In her dissent Justice Sandra Day O’Connor argued that exempting evidence that could lead to the “exoneration of an innocent criminal defendant” was of greater concern than “the potential disincentive to forthright communication.” Taking O’Connor’s lead, Crawford granted an exception on the grounds of “fundamental fairness and due process.”
Crawford argued that the exceptional circumstances surrounding Fell’s retrial justify the release of Lee’s legal files. He said any harm to Lee’s reputation or estate was unlikely.
“The stakes in Mr. Fell’s case are extremely high,” Crawford wrote. “It is difficult to imagine a case which presents exceptional circumstances more clearly than this one.”