[P]rosecutors are calling on a judge to reject arguments by accused killer Donald Fell that cite a recent U.S. Supreme Court ruling regarding sports gambling as a reason to declare the death penalty unconstitutional.
Assistant U.S. Attorney William Darrow, who is prosecuting Fell in the capital case in the November 2000 slaying of 53-year-old Teresca King of North Clarendon, says in a filing that a ruling by the nation’s highest court shouldn’t affect the death penalty case pending in Vermont.
Fell’s lawyers, in a filing in May, sought to overturn the federal death penalty statute pointing to the 10th Amendment of the U.S. Constitution, which restricts the federal government’s power over states.
A March Supreme Court ruling struck down a federal ban on commercial sports betting as an unconstitutional breach of states’ rights. Writing for the majority of the court, Justice Samuel A. Alito Jr. said, “A more direct affront to state sovereignty is not easy to imagine.”
Fell’s attorneys claim that the “anti-commandeering doctrine” of the 10th Amendment, cited in the high court ruling, bans the carrying out of a death sentence in his case because the Federal Death Penalty Act requires the participation of state resources.
His attorneys wrote in that filing, “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.”
However, Darrow, the federal prosecutor, wrote in his recent filing, that is not the case.
The specific language of the Federal Death Penalty Act, the prosecutor wrote, says federal authorities “may” use state resources.
Darrow then described the process leading to an execution under the act.
When a death sentence is handed down in a federal death penalty case in a state that does not have its own death statute, he wrote, the federal judge designates another state that does have a death penalty statute “and the sentence shall be implemented in the latter State in the manner prescribed by [its] law.”
The statute also states, “A United States marshal charged with supervising the implementation of a sentence of death may use appropriate State or local facilities for the purpose, may use the services of an appropriate State or local official or of a person such an official employs for the purpose, and shall pay the costs thereof in an amount approved by the Attorney General.”
And, Darrow wrote, a federal regulation specifically provides for federal executions to take place at a federal facility.
“As Fell concedes,” the prosecutor added, “the Government has not conducted an execution in a state facility for more than half a century.”
Federal death row is in Terre Haute, Indiana, and it is also where federal executions are currently carried out. Fell had been serving time in that federal prison on death row for several years.
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. He is currently being held without bail at a detention center in Brooklyn, New York.
Since 1963, three people have been executed by the federal government, with all of those carried out by lethal injection at the Terre Haute prison. Those three people include Timothy McVeigh for the murder of eight federal law enforcement officers in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma.
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.
Judge Geoffrey Crawford, who is presiding in Fell’s case, has told attorneys for the prosecution and defense that he was planning on a fall retrial.
The latest retrial date could also be in jeopardy as 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.
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 push back any fall trial.
Fell’s various legal teams over the years have tried multiple times to challenge the constitutionality of the death penalty, including the most recent attempt.
In 2002, Judge William K. Sessions, who was presiding over the case at that time, agreed with Fell’s lawyers and did declare the federal death penalty unconstitutional. However, that ruling was later overturned by an appeals court.
His latest lawyers have filed a blizzard of motions in recent weeks, including raising more arguments why the federal death penalty statute should be declared unconstitutional.
One of those filings argues that Fell was too young to be eligible for the death penalty. Fell was 20 when he was arrested and charged in King’s death.
“Simply put,” the filing by Fell’s attorneys stated, “his evidence will show that at the time of the offenses, Mr. Fell did not function as an adult with sufficient moral culpability for capital punishment.”
Darrow, reached Friday, declined comment. John T. Philipsborn, Fell’s attorney, could not be reached Friday for comment.