By Greg Guma | Vermont Guardian
posted May 17, 2007
This article was posted on July 15, 2005 in the midst of a high-profile death penalty case in federal court, where prosecutors were pushing for the death penalty in a state that has not had the death penalty for more than 50 years.
It has been almost 50 years since the death penalty was imposed in Vermont, and that 1957 sentence was commuted. Thirty years later, the state Legislature officially abolished capital punishment. After the murder of a Vermont woman in 2000, lawmakers seriously considered reinstating it, and although that effort failed, the crime led to a federal trial in Burlington over the past month that has made the issue difficult to ignore.
The victim was Tressa “Terry” King, a 53-year-old grandmother from North Clarendon who was kidnapped on Nov. 27, 2000, as she arrived for an early shift at the Rutland Price Chopper. Several hours later, King was beaten to death over the border in New York. One of her killers, Donald Fell, came from Pennsylvania, where he was subjected to beatings and sexual abuse as a child, saw his parents stab each other at age 5, and started drinking from a basement beer keg before he was 10.
In June, forced to act by former U.S. Attorney General John Ashcroft, a Vermont jury convicted Fell, and on July 14, after a day of deliberations, decided that the 25-year-old murderer deserves death for his crime.
The decision comes as juries across the United States increasingly have become reluctant to impose capital punishment and surveys indicate that support is growing for life in prison without parole as an alternative. Even Texas, which is responsible for a third of all U.S. executions, and Florida, which once led the nation, have passed laws approving that option.
U.S. death sentences have declined from 300 in 1998 to 125 in 2004. Last year, there were 59 executions in the United States, for a total of 944 since the U.S. Supreme Court lifted a moratorium on executions in 1976. As of June 30, there were 27 executions this year, including nine in Texas, according to the Death Penalty Information Center.
As the Fell trial opened, death penalty opponents in Vermont argued that putting criminals to death is both uncivilized and ineffective as a deterrent. Joseph Gainza, director of the Vermont chapter of the American Friends Service Committee, told the press, “Many people are feeling that this is Vermont, and we made the decision that we don’t want to have the death penalty. Vermonters on the jury should not decide whether or not a person dies at the hand of the state.”
Burlington Mayor Peter Clavelle went even further, claiming that residents “reject the death penalty.” Former Gov. Madeleine Kunin called the trial “a federal intrusion” and noted that no politician who supports capital punishment has recently been elected.
Despite such arguments, public opinion across the state has not been convincingly assessed in years. The most recent published poll, taken by State Sen. William Doyle on Town Meeting Day 1999, suggested that the state is divided: 48 percent of those who responded said the death penalty should be restored, with 41 percent opposed. Although Doyle’s poll reached thousands of people, it only included the opinions of those who chose to participate, and the question was posed as neighboring Massachusetts debated a death penalty bill.
Sensing the absence of a statewide consensus, recent Vermont governors have straddled the fence. In the midst of the state’s 2001 debate on the issue, then-Gov. Howard Dean said he wouldn’t introduce a death penalty bill, but added that he wouldn’t veto one that reached his desk. In 2003, during his bid for president, Dean told Meet the Press, “The problem with life without parole is that people get out for reasons that have nothing to do with justice.”
As the penalty phase of the Fell trial began, Gov. Jim Douglas adopted a similar position. At a June 30 press conference, Douglas said that although he has no plans to propose capital punishment, he also isn’t “unalterably opposed.”
According to Vermont Law School Prof. Michael Mello, a death penalty expert, once the Fell trial ends, the victim’s family, whose strong support for the death penalty is said to have influenced Ashcroft’s decision to reject a life without parole plea agreement for Fell, could turn their attention to the Legislature. “They may say that what we need to do in memory of their relative is pass ‘Terry’s Law,’” Mello noted.
Facts and moral judgments
The defense team did not dispute the grim details of the case during the guilt phase of the trial. Fell and a friend, Robert Lee, came to Vermont on Nov. 27, 2000, from Wilkes-Barre, PA. Fell’s mother, Debra, had contacted him after a seven-year separation. On Christmas Day in 1993, she had left their home, ostensibly to buy a ham, and didn’t come back.
On an audiotape played in court, which was recorded during the hunt for King’s body, Fell couldn’t explain why things turned bad during the reunion. But he acknowledged that he killed his mother’s boyfriend, Charles Conway, while Lee stabbed Fell’s mother to death. Before he hanged himself in custody, Lee told a different story, placing most of the responsibility on Fell, according to an investigation. The two had been drinking and using drugs.
Around 4 a.m. the next morning, they grabbed King, stole her car, and drove her at gunpoint into New York. Crossing the border made the case a federal crime. Hours later, they stopped in Dover, NY, where the two beat her to death.
“I was getting nervous,” Fell said on the tape, “and wanted to set her free. But Bobby had a different idea.” Whatever the truth, the two then drove south, and were apprehended in Arkansas. Before he was caught, Fell said, he wanted to kill himself with a heroin overdose.
Since state lines were crossed, federal authorities claimed jurisdiction and decided to put Fell on trial for kidnapping and carjacking with death resulting. But when the U.S. attorney’s office made a plea agreement to spare Fell’s life, offering a lifetime jail sentence with no chance for parole, Ashcroft rejected it.
“The charitable explanation is national uniformity,” Mello explained. “Justice shouldn’t depend on whether you live in Vermont or Pennsylvania. The federal government has strong interest in national uniformity.” But there’s a less charitable explanation as well. “Bush and Ashcroft are true believers. They have a missionary evangelical impulse to bring the benefits of capital punishment to the states that don’t have it,” Mello said.
Ruling on a motion in 2002, Federal District Court Judge William K. Sessions III declared the Federal Death Penalty Act of 1994 unconstitutional. He argued that this Clinton-era law deprives defendants of their rights under the Fifth and Sixth amendments to the Constitution. But the 2nd U.S. Circuit Court of Appeals overruled him and sent the case back, setting the stage for a courtroom drama in which a jury of Vermonters would have to decide whether Fell should be executed.
The trial was conducted in two phases: guilt and penalty. The first took only four days, and the jury deliberated less than two hours before finding Fell guilty. But the real decision still lay ahead.
As the penalty phase opened, prosecutor William Darrow argued that Fell had “earned the ultimate punishment” and that mitigating circumstances such as his troubled childhood were outweighed by the “savagery and senseless brutality” of the crime. Defense lawyer Gene Primomo responded by outlining what family members, teachers, and a social worker would later describe: a childhood rife with exposure to violence, drugs, alcohol, and abuse.
“Donny Fell is pleading ‘don’t kill me’,” Primomo added, noting that Fell “offered to plead guilty to these crimes in return for his life. But the government seeks death. That’s why we’re here.”
Instructing the jury, Sessions said that if they could not agree, life without parole was the sentence he would impose.
“To the extent that there’s a standard playbook, this is it,” Mello said. “The problem is that it also doesn’t always work.” Criminal trials, especially capital cases, rest largely on facts, but the decision to impose a death sentence is a moral question. “Is death the appropriate punishment? It’s a moral and ethical more than legal judgment,” Mello explained. “Has he [the defendant] lost his moral entitlement to live?”
Death penalty opponents also see the issue in moral terms. Catholic Bishop Kenneth Angell issued a statement in June calling for “solutions that are not as uncivilized” as putting people to death for crimes, while Burlington Rabbi Joshua Chasan called capital punishment “ethically unacceptable.”
Supporters of capital punishment dispute such arguments. “Murder and executions are only the same to those people who see crime and punishments as moral equivalents,” writes Dudley Sharp, a Houston-based activist who debunks abolitionists in articles and TV appearances. He notes that “81 percent of Americans thought that Oklahoma City bomber Timothy McVeigh deserved to be executed. I suspect 99 percent of Americans do not equate McVeigh’s slaughter of innocents to his judicially imposed execution.”
For the jury, the issue was complicated further by conflicting testimony about Fell’s character and behavior both before and after the murders. Witnesses, including Fell’s sister Teri, described incidents in which their mother cut and stabbed her husband, and a generally chaotic home life that involved excessive drinking, frequent and violent family arguments, and young Donny’s sexual abuse by babysitters. Teachers described the boy as an eager learner who responded well to structure and encouragement. Nevertheless, Fell became aggressive and violent by the time he was a teen and was sentenced to 18 months at a school for troubled youth.
Prosecutors were able to use some of the same witnesses called by the defense to show that programs and counseling were available, and that Fell’s mother made efforts to improve her behavior before she left the family.
Defense witness James E. Aiken, a prison management consultant with 30 years’ experience, put Fell at the “lower range of even being disruptive, and nowhere near the range of being a predator.” But prosecutors used Aiken’s appearance as an opportunity to present Fell’s disciplinary record in jail, including nearly 20 incidents that ranged from fighting and spitting at prison guards to drug possession.
“Conventional wisdom holds that you don’t make arguments in the penalty phase that the other side is going to be able to blow apart. It makes you look dishonest, shifty,” Mello observed. “On the atmospheric level, contradictory evidence says you can’t believe anything these guys are telling you. What’s troubling is that the defense did a good job in the opening argument, going into the penalty phase with a level playing field.”
The politics of death
Although the national mood may be shifting slightly away from capital punishment, some politicians continue to capitalize on the issue, and federal pressure is building to speed up the post-conviction appeals process.
In Massachusetts, Republican Gov. Mitt Romney has introduced a bill aimed at reinstating the death penalty. The last execution in that state was in 1947, but the topic has been hotly debated since the state Supreme Court abolished it in 1984.
Romney, who is testing the waters for a 2008 presidential run, has described his approach as “a model for the nation.” If approved, his so-called “kinder, gentler” version would re-impose capital punishment for acts of terrorism resulting in death, killing sprees, murdering police, and murders involving torture. For anyone hoping to head up the national GOP ticket, endorsing the death penalty is considered a requirement.
In Congress, Republicans have launched a new effort to speed up executions by limiting the ability of those sentenced to death to appeal in federal courts. Introduced in the U.S. House by Rep. Dan Lungren, R-CA, and in the Senate by Jon Kyl, R-AZ, the Streamlined Procedures Act of 2005 would limit the ability of defendants facing death sentences to have their cases reviewed in habeas corpus appeals. Opponents see little chance of blocking the measure in the House. In any case, such efforts have faced only limited opposition from Democratic officeholders, many of whom have been hesitant to appear soft on crime.
Habeus corpus (Latin for “you have the body”) gives defendants the right to have their imprisonment reviewed by a court. For defense lawyers, it has been a vital weapon. A study of 5,826 death sentences imposed in the United States between 1973 and 1995, spearheaded by Columbia University political scientist Andrew Gelman, found that 68 percent were reversed on appeal. The most common reasons were incompetent legal defense, prosecutorial misconduct, suppression of evidence, poor jury instructions, and biased judges or jurors.
Mello believes that the current push for streamlined appeals could have the opposite result. “The last time they did this, in the 1996 Anti-Terrorism and Effective Death Penalty Act, everyone predicted the end of habeus corpus,” he noted. “It didn’t happen. What did happen was that the pre-1996 act was just settling down. Things were moving faster. Everyone had figured out how to get it done. Then Congress changed the rules, and lower courts are still flummoxed over what the 1996 act means.”
Opponents of capital punishment also fear that the Fell case and the May execution of multiple murderer Michael Ross in Connecticut _— New England’s first execution in 45 years — may spark reconsideration of the death penalty elsewhere in the region. Mello disagreed. “Before New England will execute you, you must be white, a serial killer, and volunteer” to die, he claimed.
The federal death penalty was authorized for certain cases in 1988, with the approval of Justice Department lawyers and the U.S. attorney general. The Federal Death Penalty Act of 1994, signed by Clinton, added many new circumstances in which death sentences could be applied, including killing in the course of another serious offense and non-homicide offenses such as treason and espionage. There are currently 37 federal death row inmates.
A change in the composition of the U.S. Supreme Court could further complicate the issue. Although Mello said retiring Justice Sandra Day O’Connor proved to be an unreliable fifth vote in many death penalty cases, he still views her as preferable to “an ideological ‘hang hard’ who just wants to kill your client.”
And although U.S. Attorney General Alberto Gonzales, a possible Bush nominee to replace O’Connor, has been criticized by death penalty opponents for his handling of Texas cases as chief counsel to then-Gov. George W. Bush, Mello sees Gonzales as preferable to another Clarence Thomas or Antonin Scalia. “On paper he’s a nightmare,” Mello admits, “but he’s not Ashcroft. I don’t think he’s an ideologue, and his record as attorney general hasn’t been so bad. He doesn’t strike me as the true believer that Ashcroft was. In testimony before Congress, he’s a got a temperance and open-mindedness that I find guardedly non-pessimistic.”
A more serious national conversation about the death penalty has emerged over the last decade, in part due to the increased use of DNA evidence and the 118 cases in which factually innocent people have been released from death row. “That started the conversation,” Mello argued. “It would be deliciously ironic if DNA technology, which allows for a degree of certainty, did in the death penalty.”
Fell’s guilt isn’t a matter of doubt, however. Instead, what a Vermont jury has faced over the past month is essentially a matter of moral judgment, colored by the terrible nature of the crime and the hardships experienced by a relatively unremorseful perpetrator. To a limited extent, class also has figured in the equation, since the case has pitted well-funded federal prosecutors against an indigent defendant who long ago slipped through society’s safety net. “The idea that whether you live or die depends on your resources resonates with a lot of Americans,” Mello noted. In Fell’s case, however, the jury apparently determined that this did not weigh heavily enough to spare his life.
Like it or not, Vermont has been compelled by Fell’s senseless crime to grapple with an issue that will continue to stimulate heated debates at dinner tables, in legislative chambers, and perhaps even on the campaign trail for years to come.