By Adam Federman, VTDigger.org
RUTLAND — Two weeks of hearings on the constitutionality of the death penalty opened Monday, July 11, in U.S. District Court in a case that has the potential to lead to the first-ever U.S. Supreme Court ruling on the legality of capital punishment.
Defense lawyers for Donald Fell, who is facing his second trial in the murder of North Clarendon resident Terry King almost 16 years ago, are seeking to strike down the death penalty on the grounds that it is cruel and unusual punishment. Vermont has no state death penalty — it was abolished in 1965 — but because the victim was taken across state lines into New York, the case comes under federal jurisdiction.
Fell was convicted of murder and sentenced to death in 2005. However, the verdict was overturned after revelations of juror misconduct. A retrial is scheduled for early next year.
U.S. District Judge Geoffrey Crawford said Monday that the hearings have the potential to “create a rich factual record for higher courts with broader authority to rule on the big questions.”
“The death penalty is one of those handful of topics in the law where morality, our common history, our views on life and death, and crime and punishment all come together,” said Crawford. “It is a kind of intellectual tinderbox with an influence on our national discourse somewhat in disproportion to its actual application.”
The case could reach the nation’s top court.
“Some people feel this could be queuing up the issue for review by the U.S. Supreme Court,” said Allen Gilbert, former executive director of the Vermont chapter of the American Civil Liberties Union.
The significance of the hearing lies in the fact that it is before a federal judge. Although similar arguments are routinely made by attorneys defending death penalty clients across the country in state courts, this could have broader implications and lead to the Supreme Court’s first opportunity to consider abolishing capital punishment altogether. The high court has ruled in the past on aspects of capital punishment.
“It could be a very significant series of arguments that are made over the next two weeks in Rutland,” Gilbert added. Fell and an accomplice were accused of killing King, 53, who worked at a Price Chopper in Rutland, after hijacking her car and driving it across state lines in 2000. In hearings preceding Fell’s first trial, Judge William K. Sessions III ruled the federal death penalty law unconstitutional. The 2nd U.S. Circuit Court of Appeals overturned that ruling, and Fell was sentenced to die.
King’s sister Barbara Tuttle said she and other family members have attended every court hearing over the past 16 years. “I hope that the judge rules appropriately in our favor. Donald Fell should’ve been executed years ago,” she said outside court Monday. “It’s just like reliving the whole thing over.”
Fell wasn’t present for the hearing. He is imprisoned in New York City.
Since King’s death in 2000, seven states have abolished the death penalty. In 2005 the Supreme Court ruled that executing anyone younger than 18 was unconstitutional. Fell was 20 when King died.
Much of Monday’s hearing focused on the impact of solitary confinement on inmates such as those on death row and issues surrounding the selection of jurors in death penalty cases. Craig Haney, a social psychologist at the University of California Santa Cruz and the author of “Reforming Punishment: Psychological Limits to the Pains of Imprisonment,” testified on conditions at the U.S. Penitentiary in Terre Haute, Ind., where Fell was held while on death row.
Haney toured the facility last week and presented a series of photographs, several of which were marked confidential. There were three photos Haney said were of the cell Fell occupied in 2012. It was a rare glimpse inside the walls of a maximum-security solitary confinement unit. Haney described the Terre Haute penitentiary as especially restrictive even among solitary confinement units, with prisoners allowed only one hour of exercise a day, five days a week. Some prisoners are also allowed up to two hours of leisure time a week, he said.
The cells, about 60 square feet, have solid steel doors with a narrow rectangular window. Meals are eaten in the cells, which also contain showers and toilets — thus minimizing contact with other inmates or staff. When family members visit, they are separated from the inmates by glass and communicate by phone.
As of 2015, according to Haney, 39 of the 62 prisoners on death row at the Terre Haute facility had been in solitary confinement for 10 years or longer, and 10 had been in solitary for 18 years.
Fell’s attorney Michael Burt described it as a “prison within a prison.”
