The motion, filed Friday, asks the court for permission to appeal U.S. District Judge Geoffrey Crawford’s decision not to rule the death penalty unconstitutional and his refusal to grant a stay in the retrial.
If the appeals court agrees to review either of the decisions, it could delay Fell’s retrial, which is scheduled to begin in late March.
Lead counsel Michael Burt, who recently wrapped up his defense of Gary Lee Sampson in another death penalty trial, has argued that he has not had ample time to prepare for the Fell trial. Sampson was sentenced to death Jan. 9 in Massachusetts.
Burt has floated the possibility of asking to withdraw from the case if he doesn’t get more time to prepare.
In the motion before the 2nd Circuit, Burt says additional time to prepare will “advance the ultimate termination of the litigation.”
“If this order is in error,” Burt writes, “and Mr. Fell is forced to trial with unprepared counsel, this death penalty case may again be subject to a retrial.”
In an earlier motion the defense had sought permission to appeal the death penalty ruling but was rebuffed by Crawford, who argued that the case did not meet the legal requirements for granting what is known as an interlocutory appeal. Typically such appeals are granted only in civil cases. However, the 2nd Circuit has conceded that in rare instances interlocutory appeals may be heard in a criminal case.
Fell, who is charged in the killing of North Clarendon resident Teresca King in 2000, was convicted in 2005 and sentenced to death. However, the ruling was overturned due to juror misconduct. Fell’s current defense team was appointed in February 2015 after the case was transferred to Judge Crawford.
It is not the first time the 2nd Circuit will be asked to address matters related to the constitutionality of the death penalty in this trial. In 2002 the appeals court overturned a decision by Judge William Sessions declaring the death penalty unconstitutional because it denied a defendant’s right to due process.
Though Crawford found major flaws in the application of the federal death penalty, he said it was not the role of a district court judge to overturn the prevailing wisdom of the Supreme Court, which has upheld the constitutionality of the death penalty for more than 40 years. Crawford has also expressed some frustration with the defense team’s request for additional time to prepare and has pointed out that the retrial has already been delayed twice.
Yet the defense maintains that addressing the constitutionality of the death penalty at this stage will ultimately save time and money on “fruitless litigation” in the future. If Fell is convicted and sentenced to death, Crawford’s ruling will undoubtedly be appealed. Even if Fell is sentenced to life in prison, the death penalty ruling will likely play a role in an appeal given Crawford’s criticism of the jury selection process in capital cases.
In its motion the defense says the 2nd Circuit “has extolled the virtues of pretrial appellate litigation of the constitutionality of the Federal Death Penalty Act.”