U.S. District Judge Geoffrey Crawford has been hearing arguments in Rutland over whether to move the Donald Fell retrial. File photo by Andrew Kutches/VTDigger
Edward Bronson, a retired political science professor who has testified in hundreds of such hearings, said the Fell case ranks among the highest in terms of media saturation.
According to Bronson, who appeared via video feed from California, more than 600 articles on Fell have been published since 2000, nearly half of them in the Rutland Herald. The defense has argued that the prejudicial and inflammatory nature of the media coverage would preclude a fair trial for Fell, especially in the southwestern or northern parts of the state. That conclusion is also based on a recent Castleton Polling Institute survey showing higher levels of awareness of the Fell case in those areas.
“Widespread prejudicial publicity in this case makes it improbable that a fair and impartial jury can be seated,” the defense wrote.
The defense wants the trial moved to New York state or at a minimum outside the southwestern jury division and the Rutland courthouse.
Fell and Robert Lee were charged in the 2000 kidnapping and killing of North Clarendon resident Teresca King. Lee died the following year in prison. Fell was convicted in 2005 and later sentenced to death. However, the ruling was overturned due to juror misconduct. A retrial in Rutland is scheduled for February.
The government contends that the case should be heard in Rutland using a statewide jury draw and detailed questionnaire that would help identify jurors “so tainted by press coverage that they would not be capable of following the court’s instructions.”
In its motion against relocating the trial, the government wrote, “If, and only if, that statewide draw fails to seat a qualified, impartial jury, should Defendant’s motion to change of venue be considered.”
Government witness Nicholas Scurich, a psychology professor at the University of California, Irvine, said the raw number of articles on the case doesn’t tell much about the extent of coverage or the nature of the publicity. The more than 600 articles Bronson reviewed had to be considered in the context of a case that has dragged on for more than 15 years, Scurich said.
Comparing it to the coverage of the Boston Marathon bombing trial, for example, is misleading, Scurich said. In that case roughly 400 articles were produced over a two-year period. A comparable number over a 16-year period would be more than 3,000 articles.
“In my opinion,” Scurich said, “it’s potentially misleading to say Fell has garnered more publicity than the Boston Marathon bombing case.” A motion for change of venue in the Boston bombing trial was denied.
Donald Fell
In his report, Scurich said the prejudicial nature of certain words was open to debate and that without context it was hard to judge their meaning or significance. In some cases, he said, words Bronson highlighted may have referred to another trial or incident and not the Fell case.
Scurich also challenged a Castleton Polling Institute survey showing that more than 50 percent of respondents were familiar with the case. According to the survey, which sampled about 400 people in each of the three jury divisions, about 61 percent in the northern and southwestern jury districts had some awareness of the case. Only 39 percent of respondents in the southeastern district were familiar with it.
Richard Clark, director of the Castleton Polling Institute, explained the methodology behind the survey and said he and Bronson had devised the questions, which contained more information than a typical survey question. Clark said this was done to avoid false negatives where someone who in fact knows about the case reports never having heard of it. “You don’t know what’s going to trigger recall,” Clark said.
However, Scurich argued that in some cases the questions were highly leading and stated facts about the case that could’ve influenced the respondent’s choice. For example, one question said, “Donald Fell and his partner had beaten to death his mother and stepfather in Rutland.” This statement was followed by a question asking whether the respondent believed Fell was guilty. According to Scurich, the question strongly implied that an affirmative answer was appropriate.
The government also noted some of the information in the questions, including the above reference to Fell’s stepfather, wasn’t accurate.
“It’s not clear to me that these responses reflect the true sentiment of the public as opposed to the participants being led to select a response,” Scurich said.
Even so, in his expert report Scurich acknowledged that a “non-trivial number of Vermont residents are aware of the case.” The government also said, “At most, defendant has proven that this case was newsworthy.”
U.S. District Judge Geoffrey Crawford asked Clark how it was that half of all survey respondents could have no knowledge of the case if more than 600 newspaper articles had been written on it over the years. Clark said survey research must grapple with the problem of memory recall.
“People don’t remember who they voted for in the last election,” Clark said.
Clark also said it had become increasingly difficult to reach younger people who typically don’t have landlines and that surveys had to be weighted to take account of that as well as other factors. “To not weight the data would’ve been irresponsible,” he said.
Family members of Teresca King present at the hearing said it would be difficult for them to attend if the trial were moved. King’s daughter Karen Worcester, who lives in Rutland, said it would be a financial struggle and that even when the original trial was held in Burlington in 2005 it was a challenge to attend every day.
“It’s important for the family to be here to represent our mother,” Worcester said. “Or she’s just words on paper.”
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