RUTLAND — Attorneys for alleged killer Donald Fell want to move his second capital trial from Rutland to Burlington, where questionnaires reveal fewer potential jurors know about the case and more oppose the death penalty.
Fell is charged in the killing of Teresca King, 53, of North Clarendon, in November 2000. He is slated to stand trial in September in federal court in Rutland. The trial was originally expected to start last month, but Judge Geoffrey Crawford approved a postponement to give Fell’s attorneys more time to prepare.
The jury selection process, however, did get underway, with 387 prospective jurors from around the state filling out questionnaires asking them about a variety of topics, including their position on the death penalty.
Fell’s legal team filed a motion Monday based on the results of those questionnaires to move the trial about 65 miles north to federal court in Burlington.
A breakdown included in the motion shows that in the southwestern division of Vermont, based out of Rutland federal court, 64 percent of the potential jurors reported supporting the death penalty.
That’s 12 percentage points higher than the 52 percent of potential jurors from both the northern division, based in Burlington, and the southeastern division, based in Brattleboro, who said they supported the death penalty.
A further breakdown of the southwestern division, according to the motion, shows that specifically in Rutland County, 75 percent of potential jurors supported the death penalty.
Also, when asked about what the punishment in the case should be if Fell were convicted, 52 percent of the potential jurors from the southwestern division believed he should be sentenced to death, compared with 39 percent in the northwestern division and 34 percent in the southeast.
The motion also states that more potential jurors from the northern division asked the judge to be excused from jury duty due to the hardship of having to travel to Rutland for the trial, which could last as long as three months.
The percentage of potential jurors seeking “transportation hardships” were as follows: northern division, 39 percent; southeastern division, 4 percent; and southwestern division, 3 percent.
If the pool of 387 potential jurors fairly represented a geographic distribution of the population by division, according to the motion, the expected jury pool would contain 221 from the northern division, 81 from the southeastern division and 85 from the southwest.
However, given the “disproportionate impact of the excusals,” Fell’s lawyers wrote, the jury pool contains 208 from the northwestern division (13 fewer than expected); 73 from the southeastern division (eight fewer than expected); and 104 from the southwest (19 more than expected). Two potential jurors were from unidentified divisions, the motion says.
“The under-representation of prospective jurors from the Northern Division — the most populous in the state — can be corrected by the trial to Burlington,” the motion states. “In the alternative, the under-representation of jurors may be corrected by drawing a higher proportion of individuals from the Northern and Southeastern Divisions as compared to the Southwestern Division.”
Also, the filing states, the percentage of potential jurors with knowledge of the case through the media, internet or talking to other people was 76 percent in the southwestern division, 56 percent in the northern division and 42 percent in the southeast.
Moving the trial to Burlington would ensure a “fair cross-section” of Vermonters serving as jurors, minimize the impact of the “extensive publicity” of the case in the Rutland County area, and reduce the problems of potential jurors knowing witnesses or others connected to the upcoming trial, according to the motion.
Fell’s first trial in 2005 took place in Burlington, where he was convicted and sentenced to death. The conviction and sentence were later overturned due to juror misconduct, leading to this new trial.
Judge Crawford rejected an earlier attempt by Fell’s legal team to move the trial from Rutland to New York state, or at least to another federal court in Vermont.
That ruling, issued in January, came before the results from the potential juror questionnaires were available. Those results prompted the renewed request. Prosecutors have opposed moving the trial.
The judge has not issued a ruling on the motion.
Also in the case, in a ruling recently handed down, the U.S. 2nd Circuit Court of Appeals rejected a bid by Fell’s attorneys to challenge the constitutionality of the federal death penalty.
A daylong hearing Monday focused on whether testimony regarding Fell’s mental health condition would be admissible during the guilt phase of the trial. Fell is not using an insanity defense.
Dr. John Shields, testifying as an expert in forensic psychology for the defense, said in court Monday that Fell suffered from post-traumatic stress disorder. Also, Shields testified, Fell had a brick fall on his head earlier in his life, injuring his brain, and he suffered from substance abuse.
According to Shields, Fell’s mental condition at the time of the charged offenses created “significant impairments” that affected his behavior and ability to function.
Prosecutors disputed the contention, arguing that Fell had been examined before the first trial and no such diagnosis was made.
Crawford took the matter under advisement and is expected to issue a ruling.
Fell, now 36, 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.