The second death penalty trial of Donald Fell, set for jury selection Monday, has been delayed after a member of his defense team termed their effort to prepare as “rudderless.”
The decision by federal Judge Geoffrey Crawford to push back the trial is the latest twist for the capital case in the killing of Teresca King, of North Clarendon, that has been working its way through federal courts in Vermont for more than 15 years.
Crawford issued a written order Friday postponing the trial, a day after a hearing in Burlington when the ruling was first announced.
Fell’s defense attorneys, citing a lack of preparation time, have been pushing for a delay, most recently rejected by the judge in December.
At the hearing Thursday in Burlington the judge heard testimony from Melanie Carr, a mitigation specialist and lead investigator on Fell’s defense team.
The judge, in his order Friday, attached a filing from Carr, termed a “declaration,” which she had signed earlier. Carr wrote that attorneys in the case have been too busy with other trials to properly represent Fell.
“My investigation, mitigation development, and trial preparation in Mr. Fell’s case has been compromised and impaired by counsel’s protracted absence and unavailability due to workload,” Carr wrote in the nine-page document.
“Counsel’s unavailability has left the defense team rudderless for most of the past year,” she added, “and we do not have enough time to pull our trial presentation together before trial begins in a few days.”
Crawford, in his order Friday, set a new trial date of Sept. 5. That will be the start of individual questioning of potential jurors by the attorneys in the courtroom.
“In the face of a credible statement from the mitigation specialist that the defense is significantly unprepared in an important area, the court has little alternative except to continue the trial,” Crawford wrote.
“Both lead counsel have advised that they have no other professional obligations which will interfere with their ability to serve in this case through an extended period for preparation.”
Crawford added that although the defense had been seeking a 60-day delay, it seemed unlikely that would be enough time.
“The court has little enthusiasm for a series of short extensions,” the judge wrote. “Moreover, trial of a three-month case over the summer months in Vermont will be extremely difficult due to potential juror unavailability.”
The judge added he will hold conferences and hearings every six weeks until the trial starts to avoid further delays. Also, he wrote, two days prior to each hearing Carr will file with the court a report on the status of the defense team’s efforts.
“The report shall be general in nature and shall not include any privileged or work-product information,” Crawford wrote. “But it shall serve to bring to the court’s attention any lack of guidance or direction or other problem which may stand in the way of the timely preparation of a complete and appropriate defense of the accused.”
Lori Hibbard, of Rutland, one of King’s daughters, who has strongly advocated for the death penalty for Fell, said Friday she and other family members are disappointed by another delay in the case.
“It’s another dragged-out process,” Hibbard said. “I feel like the justice system has failed our family, and most importantly my mother.”
Fell’s current defense team was appointed in February 2015 after the case was transferred to Judge Crawford.
The defense team has submitted scores of pretrial motions. Earlier this month the defense renewed a request for permission to appeal Crawford’s earlier decision not to rule the death penalty unconstitutional and his refusal to grant a stay in the trial.
Lead counsel Michael Burt, who recently defended Gary Lee Sampson in another death penalty trial in Massachusetts, argued that he had not had enough time to prepare for the Fell trial. Sampson was sentenced to death Jan. 9.
Burt, in the filing, said more preparation time will “advance the ultimate termination of the litigation.”
“If this order is in error,” Burt wrote, “and Mr. Fell is forced to trial with unprepared counsel, this death penalty case may again be subject to a retrial.”
Carr, in her declaration also seeking a trial delay, cited Burt’s work on the Sampson case as one of the key factors leading to issues with the preparations.
Another attorney on the defense team, John Philipsborn, has had to juggle the Fell case with a complex, multiple-defendant trial in California that began in the spring of 2016 and ran through the summer, Carr wrote.
“During the entire year of 2016, our team did not have a single team meeting,” she added. “We had some conference calls, but Mr. Burt was rarely able to participate in these calls. In fact, I believe he only participated in two or three of these calls during the year, due to his immersion in the Sampson case.”
Carr, who is based in New York City, wrote that logistics have also been a challenge, with Burt and Philipsborn both based in California and Fell held in a jail in Brooklyn.
Also, the trial preparation involves investigations in locations around the country, including Wilkes-Barre, Pennsylvania, where Fell, 36, grew up, as well as the several prisons where he has been kept since his arrest in 2000, including facilities in Terre Haute, Indiana, and St. Albans.
Philipsborn and Burt could not be reached Friday for comment. Prosecutors also could not be reached.
Fell is charged in King’s slaying in the early morning of Nov. 27, 2000, after her alleged kidnapping from Rutland. Police say Fell and his late accomplice, Robert J. Lee, were fleeing the scene of a double homicide.
Earlier that morning, police said, Fell’s mother, Debra Fell, 47, and her friend Charles Conway, 44, had been stabbed to death after a night of drinking and playing cards in the mother’s apartment in Rutland.
Lee died in prison in 2001. His death was ruled accidental.
No charges have been filed in connection with the deaths of Debra Fell and Conway.
Vermont does not have the death penalty. However, Donald Fell is facing capital punishment under federal law because King was taken across state lines and beaten to death in New York.
His first trial ended with his conviction, and he was later sentenced to death. That ruling was overturned after revelations of juror misconduct.
A tentative plea deal in October 2001 would have spared Fell the death penalty. The deal needed only the approval of then-U.S. Attorney John Ashcroft.
Ashcroft rejected the proposed agreement, which would have required Fell to plead guilty to a charge of kidnapping with death resulting in exchange for a lifetime jail sentence with no chance for parole.