[A] federal judge has denied a challenge to the death penalty raised by an accused killer from Vermont over claims that a recent U.S. Supreme Court ruling regarding sports gambling made the federal execution process unconstitutional.
Judge Geoffrey Crawford in his decision dismisses arguments from lawyers for Donald Fell, 38, that the Federal Death Penalty Act violated the anti-commandeering clause of the 10th Amendment of the U.S. Constitution, which restricts the federal government’s power over states.
Crawford’s ruling, believed to be the first of its kind in a death penalty case regarding that March U.S. Supreme Court decision in the sports betting case, itself may someday go before the nation’s highest court for review.
“I would anticipate until the issue is ultimately resolved in the U.S. Supreme Court it is likely to be raised in additional federal cases,” Robert Dunham, executive director of the Death Penalty Information Center, said Tuesday.
Fell faces a capital trial this fall in the November 2000 carjacking and beating death of 53-year-old Teresca King of North Clarendon.
Dunham called Fell’s legal team “creative” in raising the high court’s sports betting ruling so quickly in his case after it was issued.
“They are raising all the issues that they see that may have merit,” said Dunham, whose nonprofit organization based in Washington, D.C., is opposed to capital punishment and tracks death penalty cases. “By raising them now, they’re preserving them for appeal.”
Fell’s attorneys have argued that a U.S. Supreme Court decision issued in March struck down a federal ban on commercial sports betting as an unconstitutional breach of states’ rights.
His legal team cited the “anti-commandeering doctrine” of the 10th Amendment, which was highlighted in that high court ruling. They say that doctrine bans the carrying out of a death sentence in his case because the Federal Death Penalty Act requires the participation of state resources.
Prosecutors disputed that the U.S. Supreme Court ruling was relevant to the Fell case, contending that regulations setting up how a federal death sentence is carried out do not actually call for the use of the state money and personnel.
A federal death row has been set up in Terre Haute, Indiana, where federal death sentences are carried out by lethal injection, according to the federal prosecutors. That’s the same manner of execution used by the state government of Indiana.
“The FDPA (The Federal Death Penalty Act) itself is largely silent about the manner of execution, requiring only that it be consistent with state practice in the state where it occurs,” Judge Crawford wrote in his ruling released this week.
“In the absence of legislative requirements, the Department of Justice has the authority to adopt regulations as to the specific manner of execution,” the judge added. “A conflict would arise if the federal regulations authorizing lethal injection and the local state manner of execution conflicted. But that is not the case under current procedures in effect in Indiana.”
The Federal Death Penalty Act, the judge wrote, “commands no action” by a state official.
“It authorizes the (U.S.) marshal to employ the services of such an official and provides for payment,” Crawford wrote. “It imposes no corresponding obligation of compliance or cooperation.”
According to court records, Fell and his alleged accomplice, Robert Lee, kidnapped King in November 2000 from the parking lot of a downtown Rutland supermarket as she showed up early in the morning to work in the bakery.
Police say they two men were fleeing a double homicide they committed earlier that night, killing Fell’s mother, Debra Fell, and her friend Charles Conway in Rutland.
Vermont does not have the death penalty. However, because King’s death involved the crossing of state lines from Vermont into New York where police say Lee and Fell beat her to death prosecutors moved forward on federal capital charges in her death.
Lee has since died in prison.
Assistant U.S. Attorney William Darrow, the prosecutor in the case, and John Philipsborn, Fell’s attorney, both could not be reached Tuesday for comment.
