RUTLAND — A U.S. appeals court is seeking more information from a federal judge in Vermont before ruling on a question of evidence in the death penalty case against Donald Fell.
Fell is awaiting a retrial in the abduction and beating death of a North Clarendon woman.
Proceedings in federal court in Vermont had been put on hold pending a decision by the U.S. 2nd Circuit Court of Appeals on whether statements by a co-defendant could be admitted as evidence. That co-defendant, Robert Lee, has since died in prison.
Prosecutors this summer appealed a ruling by U.S. District Judge Geoffrey Crawford that barred Lee’s statements from entering the sentencing phase of Fell’s trial, if he is convicted again. The federal appeals court recently sent the case back to Vermont for a further hearing and a ruling by Crawford on the “reliability” of Lee’s statements.
“Because the district court in its initial ruling did not determine the reliability of each of the statements the government seeks to introduce at the sentence selection phase of the trial … we find the current record insufficient for resolving the issue on appeal,” the court’s order stated.
The appeals court told Crawford to issue a ruling within 60 days of the Nov. 15 order. A hearing is set for Jan. 5 in federal court in Burlington.
The appeals court has said other pending motions regarding disputed evidence and other matters can proceed in the meantime.
The appeals court has asked Crawford to determine if the statements that prosecutors are seeking to use violate either the Federal Death Penalty Act or Fell’s Fifth Amendment due process rights.
Assistant U.S. Attorney William Darrow, a prosecutor in the case, declined to comment Monday. Michael Burt, an attorney based in San Francisco who is representing Fell, could not immediately be reached Monday for comment.
Prosecutors have sought to introduce Lee’s statements to show their theory that Fell was the ringleader and Lee a follower.
Fell and Lee, according to court records, were allegedly fleeing the slayings of Fell’s mother and her friend in Rutland when they carjacked King in a downtown supermarket’s parking lot in November 2000.
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.
A retrial for Fell had been set for early this year. However, it was delayed when Fell’s attorneys asked for more time to prepare.
A new trial date in September was then set and jury selection got underway, but Crawford ruled to exclude the statements from Lee, prompting prosecutors to appeal.
No new trial date has been set.
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