RUTLAND – The judge in the federal death penalty case against Donald Fell has set a three-day hearing this week to hear from lawyers about the reliability of statements from a deceased co-defendant who was labeled mentally ill and too impaired the night of their crime spree to remember what happened.

The government wants to use statements made to police by Robert Lee shortly after he and Fell were arrested that Fell was the ringleader and Lee a follower in the sentencing phase of Fell’s trial. Defense lawyers argue that shouldn’t be permitted.

“Indeed, the picture that emerges of Lee is that he was so impaired that no rational person would place any stock in his ability to accurately and reliably perceive, recollect and recount that which is observed.”

The defense also raised the Fifth Amendment right for a defendant to cross-examine witnesses, noting that can’t happen with Lee, who died in prison while awaiting trial in 2001.

The hearing is set to take place Wednesday, Thursday and Friday in federal court in Rutland before U.S. District Judge Geoffrey Crawford.

Fell, 37, faces the death penalty for his alleged role in the November 2000 carjacking and slaying of Teresca King, 53, of North Clarendon.

He had been sentenced to death following his conviction at a trial more than a decade ago. However, after Fell spent several years on federal death row in a Terra Haute, Indiana, prison, a Vermont judge threw out his conviction and sentence after revelations of juror misconduct.

As the case headed to a retrial, prosecutors this summer appealed a ruling by Crawford that barred Lee’s statements from entering the sentencing phase of Fell’s trial, if he is convicted again.

The federal appeals court recently sent the case back to Vermont for a further hearing and a ruling by Crawford on the “reliability” of Lee’s statement.

“Because the district court in its initial ruling did not determine the reliability of each of the statements the government seeks to introduce at the sentence selection phase of the trial … we find the current record insufficient for resolving the issue on appeal,” the appeals court’s order stated.

Fell’s attorneys have argued in court filings that Lee’s statement are “unreliable” based on several factors, including that Lee “had multiple mental disorders which predisposed him to a life of lying and acting violently all by himself, without any help from Fell.”

Federal prosecutors say both physical evidence and witness testimony bolster the reliability of Lee’s statements. “Lee’s statements are closely corroborated by Fell’s statements,” prosecutors wrote in a filing.

Fell’s attorney have submitted a list of more than a dozen witnesses they may call over the course of the hearing this week, including several law enforcement officers who interviewed Lee after his arrest.

The appeals court has asked Crawford to determine if the statements that prosecutors are seeking to use violate either the Federal Death Penalty Act or Fell’s Fifth Amendment due process rights.

Neither Assistant U.S. Attorney William Darrow, a prosecutor in the case, nor Michael Burt, an attorney based in San Francisco who is representing Fell, could immediately be reached Tuesday for comment.

Fell and Lee, according to court records, were allegedly fleeing the slayings of Fell’s mother, Debra Fell, and her friend Charles Conway in Rutland when they carjacked King in a downtown supermarket’s parking lot in November 2000. King had just arrived in the parking lot as she was heading to work early that morning in the store’s bakery.

Vermont doesn’t have the death penalty. However, because King was beaten and killed in New York state after her abduction in Rutland, federal prosecutors took jurisdiction of the case and
are seeking the death penalty for Fell.

A retrial for Fell had been set for last February. However, it was delayed when Fell’s attorneys asked for more time to prepare.

A new trial date set for last September was then set and jury selection got underway, but Crawford ruled to exclude the statements from Lee, prompting prosecutors to appeal.

It’s not clear when a new trial would take place.

Lee, who also faced federal capital charges, died in prison in 2001 before he could be tried.