[A] federal judge has issued a decision that excludes a prosecution expert from providing testimony linking the fatal injuries suffered by a North Clarendon woman to the man facing a capital trial over her death rather than his alleged accomplice.
Judge Geoffrey Crawford sided with the attorneys for 38-year-old Donald Fell in the ruling released Thursday, saying that the testimony of Victor Weedn, a forensic pathologist, “is not sufficiently reliable for admissibility” in a potential penalty phase of the case.
During a hearing last month, the judge told Weedn that he is the first scientist in a case that has spanned nearly two decades to say the injuries that were inflicted to the neck of Teresca King, 53, were the “sole” ones that caused her death.
The issue of which injury caused her death has been a matter of dispute, with prosecutors and defense attorneys differing on whether Fell delivered the fatal blow by stomping King’s neck with his boot, or if it was his alleged accomplice striking King in the head with a rock.
Fell, 38, faces the death penalty for his alleged role in the November 2000 carjacking in Rutland and later slaying of King in New York state. His friend and alleged accomplice, Robert Lee, died in prison in 2001 before he could be tried on capital charges.
Weedn, who helped to develop an accreditation process for the country’s medical examiners and now teaches at George Washington University, testified at a hearing last month that “my opinion” is that King died of an “airway obstruction.”
He said that while the blow to King’s head was severe, the brain injuries she suffered would have taken an hour or more to kill her, adding that it may even had been survivable.
The stomp to her throat while she was lying unconscious on the ground resulted in injuries that caused her death within minutes, Weedn testified.
He said that based on his review of the evidence in the case that King’s tongue fell back.
Combined with other factors, Weedn testified, including “damage to the structural integrity” of her neck and blood from her injuries after having several teeth knocked out, this obstructed her airway and caused her death.
The hearing last month took place to determine if Weedn’s testimony could be admitted in a possible penalty phase of the capital trial against Fell.
Crawford, in his recent ruling, wrote that during cross-examination by Fell’s attorney during that hearing Weedn admitted that death through asphyxiation of an unconscious person by the tongue is not recognized in the forensic literature as a common cause of death.
The judge then quoted from the hearing an exchange between one of Fell’s attorneys, John T. Philipsborn, and Weedn:
Philipsborn: [C]an you point us to one piece of literature that you rely on in which persons who are either pathologists like you or forensic scientists have actually commented on the occurrence of the blockage of the airway as an artifact of unconsciousness which produces asphyxia death and should be suspected in cases in which a victim is found on her back at a crime scene?
Weedn: I don’t think I’ve seen it in the forensic literature, which was your question. It’s clearly, you know, as I pointed out in the other [clinical] literature, but it’s because we look for anatomic causes of death [in forensic examination].
Philipsborn: So it’s because persons who are involved in the forensic sciences have not considered this as a hypothesis worthy of consideration or scholarship?
Weedn: … I think they haven’t considered it. That’s not a matter of saying they don’t think it’s significant. I don’t think they thought about it because it’s not a part of kind of what they do. I do bring that. And I do think that is a deficit in our forensic literature. It’s not a deficit in the medical literature.
Also, the judge wrote, Weedn admitted that there is “no body of forensic scholarship” on the issue of asphyxiation by the tongue in cases of unconsciousness.
Again, the judge quoted an exchange from the hearing:
Philipsborn: [W]hat you have explained is there is no existing body of literature that supports the hypothesis that you’ve stated to the Court that an obstruction of an airway by the tongue is something that will be missed as a matter of routine by a forensic pathologist?
Weedn: I cannot point to a paper per se. That is true.
During that same hearing last month, Charles Wetli, deputy chief medical examiner for Florida’s Dade County for almost 20 years and later in Suffolk County, New York, testified for the defense that in his opinion it was a head injury that caused King’s death.
He said the injuries from a blow to King’s head would have resulted in her losing consciousness almost immediately, and then her death.
“In my opinion, the head injury predominated,” Wetli testified.
Philipsborn, reached Thursday at his California law office, declined comment.
Assistant U.S. Attorney William Darrow, who is prosecuting the case, could not be reached Thursday for comment. A spokesperson for the U.S. attorney’s office in Vermont declined comment on the decision.
Fell had been sentenced to death following his conviction at a trial in federal court in Burlington more than a decade ago. However, after Fell spent several years on death row, a federal judge in Vermont tossed out that conviction and sentence after revelations of juror misconduct.
Prosecutors say that both Fell and Lee “battered” King, with each giving statements after their arrest describing their role. Lee talked of using a rock but not his feet, and Fell told police, “I used my feet,” while Lee used a rock, according to prosecutors.
Fell and Lee, according to court records, were on the run from the slayings of Fell’s mother, Debra Fell, and her friend Charles Conway in Rutland when they carjacked King in a downtown Rutland supermarket 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.
State prosecutors also accuse Fell and Lee of killing Debra Fell and Charles Conway, but no charges have been brought in that case because of the stiffer potential sentence in King’s death.
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 date for Fell’s retrial has not yet been set. It had been set several times previously but keeps getting pushed back because of numerous appeals of rulings. The judge this week did set the jury selection process to begin in July, with questionnaires provided to potential jurors.
Crawford, in his ruling issued Thursday, wrote that he is making no judgment about the cause of King’s death.
“Rather, it is evaluating the methodology followed by Dr. Weedn in choosing asphyxiation by the tongue,” the judge wrote. “This methodology may charitably be described as ‘untried.’”
