Fell is denied death penalty exemption for disability

RUTLAND — A judge has denied a motion that would have spared Donald Fell the death penalty when he is retried on murder charges early next year.

The defense motion argued that fetal alcohol spectrum disorder, which medical experts said Fell suffered from, should be added to the list of categorical exemptions to capital punishment.

The Supreme Court ruled in 2002, in the Atkins v. Virginia decision, that the execution of people with intellectual disability (then referred to as “mental retardation”) violated the Eighth Amendment prohibition on cruel and unusual punishment. Fell’s defense argued that fetal alcohol spectrum disorder was the functional equivalent of intellectual disability, even though Fell did not meet all the criteria as outlined in Atkins. A 2005 Supreme Court ruling also exempted juveniles under the age of 18 from capital punishment.

In the Fell case, the government disputed the notion that fetal alcohol spectrum disorder and intellectual disability could be equated. It also argued there are no agreed-upon diagnostic criteria for the disorder, as required by Atkins.

In his ruling Monday, U.S. District Judge Geoffrey Crawford wrote, “The court’s sole concern here is whether FASD should be added to the list of categorical exemptions to capital punishment.” Crawford has yet to rule on the defense team’s motions regarding the constitutionality of the death penalty, the subject of two weeks of hearings in July.

Fell was charged in the killing of North Clarendon resident Teresca King in November 2000. He was later convicted of murder and sentenced to death, but the outcome was overturned due to juror misconduct. His retrial is scheduled to begin early next year.

According to John Blume, a professor at Cornell University and the director of the Cornell Death Penalty Project, very few defense teams have made the argument that fetal alcohol spectrum disorder — or other cognitive disorders — should fall under the umbrella of intellectual disability.

“It’s not as if that argument is being made in hundreds of cases, but there have been a few,” said Blume. In a 2014 paper Blume reviewed hundreds of cases that made use of the Atkins defense and said its overall success rate has been high, about 40 percent.

Fell’s defense drew on medical records, witness testimony and neuropsychological assessments to argue that his history of fetal alcohol disorder was a form of intellectual disability. According to testimony, Fell’s small size and abnormal behavior as a child were consistent with exposure to alcohol as a fetus.

A neuropsychologist who assessed Fell said he’d experienced “significant prenatal exposure to alcohol” that potentially damaged his brain. After reviewing an MRI scan of Fell’s brain, a second doctor concluded there was “strong evidence of prenatal brain damage consistent with a diagnosis in the fetal alcohol spectrum.”

The Atkins ruling established three broad criteria to define intellectual disability, including an IQ score no higher than 70 to 75. On two occasions Fell tested higher, with scores of 93, according to court documents.

However, Dr. Stephen Greenspan, who reviewed Fell’s records for the defense, said the higher IQ scores should not rule out a diagnosis of intellectual disability. According to Greenspan, the IQ statistic itself is “insufficient to understand a person’s level of cognitive functioning,” and there is a growing consensus within the scientific community that fetal alcohol spectrum disorder is equivalent to intellectual disability even with the variation in IQ scores.

Crawford said there are too many variables when considering FASD as an exemption. He wrote that, along with other conditions, it “may provide grounds for death penalty mitigation” but is not recognized as a “categorical disqualifier.”

“In short, not all people with FASD are intellectually disabled for Eighth Amendment purposes,” Crawford wrote.

According to Blume, the Atkins ruling has not been misapplied by death row inmates, as Justice Antonin Scalia had warned in his dissent. Scalia predicted the intellectual disability claim would be used by defense teams to delay executions. “That in fact did not turn out to be true at all,” Blume said. Blume’s research found that only about 7 percent of people on death row took up the Atkins ruling after it was issued in 2002.

However, Blume did say there is strong evidence that in many cases the prosecution has opted not to pursue the death penalty in light of Atkins.

The Supreme Court is to rule on another Atkins-related case this term. In Moore v. Texas the court will decide if outdated medical criteria and what one Texas judge has called the “Lennie standard” should be used to determine intellectual disability. The Lennie standard is based on Lennie Small, the fictional character in John Steinbeck’s “Of Mice and Men.”

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