Prosecutors are expected to argue that if convicted he should be executed because he is a threat to others. Fell is already accused of stabbing another inmate.
They say the results of questionnaires filled out by potential jurors show that the Rutland area skews too much toward the death penalty.
If the 2nd Circuit Court of Appeals agrees to review either of the lower court decisions, it could delay Fell’s retrial, which is scheduled to begin in late March.
A judge found that Fell’s interests outweigh the attorney-client privilege of his former murder co-defendant, whom the defense is seeking to paint as the ringleader.
The defense said publicity about the case had made it impossible to get a fair trial in Rutland or elsewhere in Vermont. But the judge pointed to a survey showing impartial jurors can be found.
The defense wants to appeal a judge’s ruling letting the death penalty stand as constitutional in advance of Donald Fell’s retrial.
U.S. District Judge Geoffrey Crawford listed a number of flaws associated with the application of the death penalty but said it wasn’t in his power to overrule the U.S. Supreme Court.
A judge ruled that having fetal alcohol spectrum disorder doesn’t automatically mean a person qualifies for a constitutional ban on executing those with intellectual disability.
His lawyers are gathering material to argue that publicity about his case has tainted the pool of potential jurors, which would be drawn from across the state.
The trace evidence has been tied to clothing he and his alleged accomplice wore when a North Clarendon woman was killed in 2000. The defense argued that forensic fiber analysis does not meet scientific standards of reliability.
The statement was made during hearings regarding the admissibility of expert witness testimony in the upcoming retrial of Donald Fell.
The defense in Donald Fell’s death penalty retrial wants the files. But a lawyer who represented the late Robert Lee says release of the files could harm Lee’s reputation.
Donald Fell’s lawyers argue that the circumstances of this case are exceptional. Fell could be facing the death penalty, and his co-defendant has been dead for 15 years.