By Alan J. Keays, VTDigger
Attorneys for accused killer Donald Fell are again asking a judge to declare the death penalty unconstitutional, this time citing a recent U.S. Supreme Court ruling regarding sports gambling.
Fell’s lawyers, in their filing seeking to overturn the federal death penalty statute, point to the 10th Amendment to the U.S. Constitution, which restricts the federal government’s power over states.
A similar 10th Amendment argument was cited in a U.S. Supreme Court ruling last week in striking down a federal prohibition against sports betting in states.
“(I)n striking down in its entirety the federal Professional and Amatuer Sports Protection Act under the anti-commandeering doctrine,” Fell’s attorneys wrote in the filing, “the [U.S. Supreme] Court stressed that ‘the rule serves as one of the Constitution’s structural protections of liberty. The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.’”
His attorneys continued, “Mr. Fell seeks to invoke that protection here. As he argues, the (Federal Death Penalty Act) violates the Tenth Amendment by providing for state officials and state facilities to be conscripted into conducting federal executions.”
Fell, 38, faces the death penalty for his alleged role in the November 2000 carjacking in Rutland and later slaying of Teresa King, 53, of North Clarendon in New York state.
His friend and alleged accomplice, Robert Lee, died in prison in 2001 before he could be tried on capital charges.
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.
At a hearing in the case Friday, May 25, in federal court in Burlington, Judge Geoffrey Crawford told attorneys for the prosecution and defense that he was planning on a fall retrial, with jury selection to start in July.
Dates for a retrial have previously been set in the case, but were scratched for various reasons, including the defense seeking additional time to prepare.
The latest retrial date could also be in jeopardy due to an earlier ruling by Crawford regarding the admissibility of statements of Lee into a possible penalty phase of Fell’s trial. That decision has since been appealed to the 2nd U.S. Circuit Court of Appeals in New York City and remains pending there.
It’s unclear when that appeals court will issue a ruling on that matter, and, if it the ruling comes back against the defense, Fell’s attorneys have indicated they will try to get the U.S. Supreme Court to take it up, which would certainly push back any fall trial.
Meanwhile, Fell’s lawyers are moving ahead on a separate track, filing the motion to declare the federal death penalty unconstitutional.
In late 2016, Judge Crawford denied a separate motion by Fell’s defense seeking to declare the Federal Death Penalty Act unconstitutional as cruel and unusual punishment.
The latest filing seeking to throw out the federal death penalty statute presents a different argument, hinging on a 10th Amendment violation claim that carrying out such executions required the help of state officials.
When a section of the FDPA’s execution provisions says “a U.S. marshal ‘may’ use state facilities and the services of a state official or state executioner, it refers to the authority invested in the marshal, not any discretion afforded the states,” the filing from Fell’s lawyers stated.
“Indeed, the statute says nothing about the designated state agreeing or contracting to take on these duties,” the attorneys added. “Rather, it proceeds simply to say that the marshal ‘shall pay the costs’ of using the state facility and officials ‘in an amount approved by the Attorney General.’”
Federal prosecutors have not yet responded to the filing.
Fell and Lee, according to court records, were fleeing 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 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.