Attorneys for Donald Fell are asking for a judge’s help as they try to rebut prosecutors’ claims that if the alleged killer is convicted he should be executed because he is so dangerous he poses a threat to others, even behind bars.
His attorney also argued that despite alleged ties to the white supremacist group The Aryan Brotherhood, Fell could be safely “managed” while locked up in the federal prison system.
Fell is seeking federal Bureau of Prisons records “to show that the incidents of assault and/or homicides by life sentenced inmates and/or death row inmates are relatively rare and cannot be associated with inmates’ affiliations, gang status, belief systems, and the like,” John T. Philipsborn, a California attorney representing Fell, wrote in a recent filing.
Fell, 36, is awaiting a death penalty retrial on charges that he abducted and killed Teresca King, 53, of North Clarendon, as she showed up early in the morning to work at a downtown Rutland supermarket more than 16 years ago. Fell’s first trial ended with his conviction and a death sentence that years later was overturned after revelations of juror misconduct.
Fell’s attorneys are seeking information they hope to use to show that even those convicted of some of the most violent crimes can be contained in prison.
“The defense will present evidence that the Bureau of Prisons can safely house Mr. Fell,” another of his attorneys, Michael Burt, who is also from California, said at a hearing Friday on the matter in federal court in Burlington.
To help bolster that argument, Fell’s defense team asked District Judge Geoffrey Crawford to order a subpoena so they can obtain a range of information from the prison bureau. That information includes disciplinary reports and records on other inmates housed in federal facilities who have convictions for prison homicides.
Prosecutors contended at the hearing that knowing how other violent offenders fared behind bars will shed little light on what to expect if Fell were incarcerated.
“What does that tell us about whether Mr. Fell is a danger to others?” asked Sonia Jimenez, a trial lawyer in the U.S. Department of Justice’s capital case section. “It tells us nothing.”
Crawford said he would issue a written order. Both Jimenez, based in Washington, D.C., and Burt took part in the hearing via telephone.
Philipsborn and Assistant U.S. Attorney William Darrow, who along with Jimenez is prosecuting Fell, attended Friday’s proceeding.
The hearing dealt with several other pending matters as the case heads to a September trial.
The judge told the attorneys he would also issue written orders on Fell’s defense team request to move the trial from Rutland to Burlington, due in part to pretrial publicity and the higher percentage of residents in the Rutland region than in other parts of the state who expressed support for the death penalty in earlier juror questionnaires.
That jury selection process was eventually scrapped when the trial, which had been set for February, was delayed until September.
Crawford in January denied a defense motion to move the trial out of Rutland. However, that was before jury questionnaires provided insight into people’s views on the death penalty and knowledge of the case.
King’s family members say it would be a hardship for them to travel daily to Burlington for the trial, which is expected to last more than three months.
The hearing Friday included discussion of the upcoming jury selection process. It will include the random selection of 15,000 names of people around the state from Department of Motor Vehicles lists of drivers and secretary of state’s office lists of voters.
The names will include 5,000 from each of three sections that the state has been broken into for carrying out jury selection. A computer program will randomly select 3,000 of those 15,000 people for the Fell jury pool, which will eventually be whittled down to 12 jurors.
The request to subpoena Bureau of Prisons records and the question of whether Fell could be “managed” behind bars generated the greatest debate at Friday’s hearing.
His attorneys, in a recent court filing, also asked for more information on a civil case pending in Indiana where Fell allegedly assaulted another death row inmate. That inmate, James Roane Jr., sued the federal prison bureau and staff members at the facility in Terre Haute, alleging they were aware of the danger Fell posed and did not act to prevent the attack and then did not properly investigate it.
According to the civil rights lawsuit, Fell stabbed and seriously injured Roane in 2012. The Aryan Brotherhood, according to filings, directed Fell, termed a “student” member of the gang, to carry out the hit on Roane, who the group claimed was a “snitch.”
Fell’s attorneys are seeking additional documents from that case to help his defense prepare for prosecutors’ expected arguments to the jury in the upcoming Vermont trial that Fell can’t be “contained” in prison and should be executed.
Fell’s attorney said in court Friday the defense team wants to show that the prison bureau “manages a wide variety of persons, some of whom have been involved in assaultive behavior while in custody while serving serious sentences.”
Among the long list of information Fell’s defense team is seeking is a list of names of inmates at the federal bureau system’s “supermax” facility in Colorado since 2005 who are housed there for committing a prison homicide.
His lawyers also want information regarding the disciplinary records of those inmates sent to what has been termed the nation’s most secure prison.
The facility, also known as ADX, houses a little more than 400 inmates, including some of the most dangerous and high-profile prisoners, from gangsters to terrorists, in the federal system.
Judge Crawford said Friday it appeared Fell’s attorneys were seeking a “carload” of records from the prison bureau.
Similar information has been collected in other federal death penalty cases, Philipsborn told the judge, adding that in many cases it’s just as simple as pushing a button to kick out the data.
The case against Fell has been working its way through the federal court system for more than 16 years.
He is charged in King’s slaying in the early morning of Nov. 27, 2000. Police say Fell and his late accomplice, Robert J. Lee, were fleeing the scene of a double homicide when they carjacked King as she arrived for work at downtown Rutland’s Price Chopper supermarket.
Earlier that morning, police said, the two men stabbed and killed Fell’s mother, Debra Fell, 47, and her friend Charles Conway, 44, in Rutland after a night of playing cards in Debra Fell’s apartment.
After carjacking King, police said, Donald Fell and Lee drove to New York state, where they later beat and stomped her to death. The two men were arrested days later, still driving King’s car, in Arkansas.
Lee died in prison in 2001, his death ruled accidental.
No charges have been filed in connection with the deaths of Debra Fell and Conway.
Vermont does not have the death penalty. Donald Fell is facing capital punishment under federal law because King was taken across state lines.
Fell, who is housed in a federal detention facility in New York City, did not attend Friday’s hearing.