RUTLAND — Saying that potentially “volatile” testimony during a pretrial hearing in the capital case against accused killer Donald Fell could taint a jury pool, a federal judge closed a proceeding to the public.
Judge Geoffrey Crawford, before issuing the order to clear the courtroom Wednesday morning, called such a move “rare” and a step he was not taking lightly.
VTDigger.org filed an objection with the federal court in Rutland to the closing of the courtroom. However, the hearing behind closed doors began before the judge took up the news organization’s bid to have the proceeding take place in public.
Prosecutors, while the hearing was still open to the public, also objected to the barring of the public from the proceeding.
Later Wednesday, at the start of the afternoon session, the judge did take up VTDigger’s objection in open court. He then reiterated his position on the need to close the courtroom to protect against tainting the jury pool.
“I think that this is the exception,” he said in response to an argument that courtrooms should be open to the public.
Crawford made his initial ruling to close the courtroom from the bench following brief remarks at the start of a hearing Wednesday morning in the case of Fell, who is facing capital charges in the beating death of 53-year-old Teresca King of North Clarendon in November 2000.
The hearing was set to take up pretrial issues in the case, and after attorneys met briefly with the judge in chambers, the parties emerged for a short public courtroom session.
In that session, Crawford said that Fell’s defense team had requested that the courtroom be closed to hear testimony regarding a “prison informant.” The informant was not named, and the substance of the expected testimony was not revealed.
Crawford did term the testimony potentially “volatile,” and with the initial jury screening about a week away he said he didn’t want that information tainting the process.
The judge added that the expected testimony was not concerning whether Fell was guilty or innocent of the charges against him, but instead went to matters that may be raised in a potential penalty phase of the trial where jurors would decide whether to impose the death penalty.
According to a public court filing, among the items that were expected to be taken up at the hearing Wednesday was a defense motion, “To exclude the testimony of proposed witness ‘GS’ on the subject of future dangerousness and to exclude any and all evidence of alleged gang or group related evidence from the penalty trial.”
Assistant U.S. Attorney Sonia Jimenez, who is part of the prosecution team, objected to the closing of the courtroom. She said that several members of King’s family were in attendance and should be allowed to observe the court proceeding.
Jimenez added that the defense had only just raised the issue and left the prosecution with no opportunity to submit more extensive written court briefs on why the courtroom doors should not be closed to the public.
Members of Fell’s defense team did not make an argument during the open session, instead telling the judge they stood by comments they had earlier made on the matter during the meeting in chambers.
The hearing behind closed doors began around 10:30 a.m. Wednesday and continued throughout the afternoon following a short lunch break.
Fell, who was 20 at the time of the arrest and is now 38, attended the hearing, the first court proceeding in months he has taken part in.
He wore a red prison uniform and entered the courtroom with both his wrists and ankles in shackles. Court officers did unlock a cuff on his right hand so he could write down notes during the hearing.
Fell 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.
Fell is facing his second death penalty trial. In the first one, he was convicted and sentenced to death, but a judge tossed out that verdict and sentence in 2014 over juror misconduct.
According to an order issued Tuesday by Judge Crawford regarding jury selection procedures, 900 people have summoned. Starting next week, jurors will begin filling out case questionnaires. Individual questioning of potential jurors is set to begin Oct. 1, the order stated.
The eventual jury will be made up of 12 people, plus four more serving as alternatives, according to the filing.
“The court will remind each juror that questions about his or her attitudes toward the death penalty should not give rise to an expectation that a death sentence is more likely than a life sentence with opportunity for release and that Donald Fell is presumed innocent of the charges in the case,” Crawford wrote.
“‘Stake out’ questions seeking to commit a juror to a particular result if he or she hears evidence of one description or another will not be allowed,” the judge added. “Jurors may be asked about their willingness to consider potential mitigating or aggravating factors, but not what effect the facts would have on their verdict.”
Read the story on VTDigger here: UPDATED: Judge in death penalty case bars public from courtroom.