In a ruling issued last week US District Court Judge Geoffrey Crawford found fault with the defense team’s argument that the case should still be considered a habeas corpus or civil proceeding. An interlocutory appeal, which Fell was seeking, is typically granted only in civil cases.
Though the decision wasn’t surprising, according to Robert Dunham, Executive Director of the Death Penalty Information Center, it does illuminate some of the contradictions and challenges the court is grappling with as it prepares for a trial that could end in a death penalty conviction.
“The irony of not allowing the appeal to go forward is that the court is subjecting Fell to the very jury selection process it believed was unfair,” said Dunham. In his ruling upholding the constitutionality of the death penalty, Judge Crawford emphasized the flaws in impaneling a so-called death qualified jury. A large body of research has demonstrated that jurors selected in capital cases are not only biased in favor of the death penalty but also more likely to convict.
According to Dunham if Fell is convicted and sentenced either to death or life in prison, Crawford’s ruling will still serve as grounds for appeal.
“If he is convicted and sentenced to death it will clearly be one of the lead issues on the appeal,” Dunham said. Even if Fell is convicted and sentenced to life, Crawford’s ruling on the death penalty would be at play. The defense could argue that their client is entitled to a new trial because the jury selection process was unfair.
“The court faces a conundrum,” said Dunham. “It faces the possibility of either an extended delay in the case or the possibility of placing a conviction at risk if later on the death penalty is held to have been improper.”
The judge declined to respond to a possible motion to withdraw from the trial, which had been raised in hearings by defense attorneys John Philipsborn and Michael Burt who said they needed more time to prepare.
Crawford wrote that it was “premature to respond to a motion which has not been made,” but expressed confidence in the ability of defense counsel to be prepared by the time the trial starts.
Fell was charged in the killing of North Clarendon resident Teresca King and convicted in 2005. He was later sentenced to death but the ruling was overturned after revelations of juror misconduct came to light. When Fell’s defense filed a petition to have the original charges vacated, the case became a civil proceeding.
However Crawford said once a new trial was granted the civil proceeding was effectively closed and pre-trial criminal phase commenced. “There can be little doubt that the case is now a criminal prosecution subject to all the rules and requirements of other criminal cases,” Crawford wrote. “These rules include a virtual ban on interlocutory appeals in criminal cases except in limited circumstances not relevant here.”
Those limited circumstances include decisions about pre-trial release, certain appeals by the prosecution, or by crime victims.
Other orders in a criminal trial may be subject to appeal if they touch on issues independent of the right to a fair trail such as double jeopardy or forced medication, Crawford wrote.
In his ruling upholding the constitutionality of the death penalty, Judge Crawford said it was not the role of a federal trial judge to overrule the majority position of the Supreme Court. However he also offered a measured critique of the application of the Federal Death Penalty Act and the jury selection process in death penalty cases, which could serve as a foundation for future challenges to the constitutionality of capital punishment.
The jury selection process in the upcoming retrial of Donald Fell is set to begin this month and will require prospective jurors to explain their views on the death penalty. According to the court, the trial could last up to three months.
