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October 8, 2006

Cornell Law to help with Donald Fell appeal ::
legal — tagged , , , and
9:05 am

Back in the summer of 2005, I was posting pretty regularly on the Donald Fell capital trial. It was, for those who remember it, a big deal around here because capital punishment is rarely used in any of the Northeastern states, and because although Vermont doesn’t have a death penalty statute, the federal statute is still available for federal crimes. With that said, I found this AP piece about the law students at Cornell helping with Fell’s appeal.

July 15, 2005

Fell verdict reactions ::
legal, vermont — tagged , , , and
12:22 pm

The news world is replete with stories of the Fell trial. Here’s a list of stories I found most relevant, mostly by searching Google News:

The Rutland Herald has this piece in which Professor Michael Mello responds to the death sentence. He notes particularly that the chances of reversal are slim:

While he calls capital punishment law and procedures the most complicated, contradictory and inconsistent area of law he had ever encountered, Mello said Sessions handled the penalty phase so well he would be surprised if the sentence is reversed on appeal.

This assessment is consistent with other accounts of the penalty phase of the trial I have heard. If one shred of good news comes of this story, it is that Donald Fell’s trial was conducted in a fair manner consistent with Due Process.

The Vermont Standard has this piece noting that the Fell case has reinvigorated the capital punishment debate in the state.

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.

The Standard also notes that Howard Dean—who many regard as a left-wing ideologue—was a supporter of Capital Punishment during his tenure as Governor:

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.”

On a national level, the Boston Globe has this thoughtful article on the Fell case, which includes a good timeline of the case.

The New York Times, the LA Times, the Washington Post, the Chicago Tribune, and the Guardian (UK) all have articles on the verdict as well, though from what I could gather they were mostly rehashed wire stories.

And finally, and possibly most relevant at this point, is the Burlington Free Press article on what’s next in the Fell case.

July 14, 2005

Death sentence for Donald Fell ::
legal, vermont — tagged , , , and
2:31 pm

In an update to a previous post: a federal jury has sentenced Donald Fell to Death:

Fell showed no emotion as the jury’s recommendation was read to the court by the clerk, but then his lawyer stood and told jurors that he had a statement from Fell.

Fell’s attorney then read the statement:

“He respects your decision. He appreciates your hard work and wants to tell you and the family of his sincere remorse. He did not want to do it at any other time publicly as it would be construed to be less genuine,” the lawyer said.

As I noted here, this is the first death sentence handed down in Vermont in nearly 50 years. It is disturbing any time a jury unanimously decides an individual should die. But also because we have no death penalty in this state, I find this outcome particularly unsettling.

Fell jury deliberates ::
legal — tagged , , and
11:54 am

The Rutland Herald posts this story on the Fell trial today. Some important details:

The seven men and five women headed into the jury room to decide Fell’s fate at 2:47 p.m. Wednesday. Shortly before 9 p.m., they sent word to Judge William Sessions they would retire for the night and return this morning to continue their deliberations in Vermont’s first death penalty case in more than 40 years.

Different defense attorneys have different superstitions regarding the length of the deliberation process. So any guess on which way the jury is trending would be pure speculation at this point.

July 7, 2005

Penalty phase for the Donald Fell Trial ::
legal — tagged , , and
7:08 pm

Here in Vermont, the penalty phase for the trial of Donald Fell still continues. Donald Fell was convicted on June 24 of this year of kidnapping and killing Tressa King. After a very brief conviction phase of the trial, the federal district court has been engaged in the penalty phase since the conviction was handed down. As many of you may know, the jury will have to be unanimous in its verdict that Donald Fell should receive the death penalty. But if they cannot come to that conclusion, then Federal District Judge William Sessions, who is no friend of capital punishment, will not further pursue the matter. According to yesterday’s Barre-Montpelier Times Argus, “[i]f the jury is deadlocked, or agrees not to hand down the death sentence, Judge William Sessions has already said he will impose a sentence of life in prison without the possibility of parole.”

Capital Punishment has had a unique history in Vermont. According to this interview with Micheal Mello (disclosure: he’s one of my professors) in Seven Days,

[stories of capital punishment in Vermont have contained very] colorful characters, very colorful issues, including potentially innocent people sentenced to death and executed, class and race discrimination—not against African-Americans, but against Irish and French-Canadians. In Vermont, as with everywhere else, if you have the financial resources, you have a much greater shot at justice.

But beside that, what’s particularly important is this:

The last execution [in Vermont] was a double execution in the electric chair in 1954. In 1952, Francis Blair and Donald Demag escaped from the state prison in Windsor by crashing a laundry truck through the prison gates. They were caught two days later following an intensive search. Both were convicted of first-degree murder for the killing of a woman named Elizabeth Weatherup of Springfield, who’d been bludgeoned by a lead pipe and robbed during their escape. Her husband was badly injured but survived.

So although the state, as a matter of policy, has done away with the death penalty, we still live with it from the Federal government. Although polls conducted of the state population have shown that the population is evenly split on whether the death penalty should be brought back, the fact is that it has not been. So it seems that even if there is support for capital punishment in this state, whether it should be brought back should be fought out in the legislature, rather than imposed by the United States Department of Justice.

But all that aside, where is the Fell trial now? The defense is putting on character evidence in order to explain why Donald’s life should be spared:

Fell’s attorneys argue he suffered a life of abuse that began to show in his school work by the fifth grade. They say he would not pose a risk of harm to others if sentenced to life behind bars without the possibility of parole.

There is a possibility that Donald Fell could be sentenced to death. My larger hope is that conversations about reviving capital punishment our state stops there.

May 30, 2005

Two of My Posts, Combined ::
legal — tagged , , , , and
10:21 pm

No, I didn’t go into hiding again. I was just out of town for a few days, celebrating my sister’s graduation from Cornell. I returned home earlier today, and have spent a good part of the afternoon/evening catching up on news and weblogs.

One post that I found particuarly interesting was this one over at Legal Fiction. First, it goes a little more in depth into the Deck opinion, which I mentioned earlier in passing (I was outside the Supreme Court building when the Court announced the opinion). But more interestingly, Publius addresses Thomas’ dissent in that case. Publius asserts that

[t]o Thomas, the act in question (shackling) only violates the 14th Amendment if there is a “deeply rooted legal principle that bars the practice.” [The subtext of this test is Roe, which is also a due process case and was clearly not based on a “deeply rooted legal principle.”] In Deck, Thomas found that there was no such deeply rooted legal principle and thus no constitutional violation. The problem with his analysis, though, is that it seems a lot more like result-driven advocacy than detached interpretation.

I think this idea also relates to my (glib, in retrospect) comment on Janice Rodgers Brown last week. So there does seem to be some smoke and mirrors when it comes to associating conservative judicial philosophy to strict interpretation of Constitutional law. So what I’m curious about, then, is how we might go about disassociating the two dynamics.

January 5, 2005

Judge Rakoff and the Death Penalty ::
legal — tagged , and
5:30 pm

Both Talk Left and the ACS blog have pointed to this New York Times profile of Judge Jed S. Rakoff, who has gained noteriety for declaring the death penalty fundamentally unconstitutional. His reasoning is the most simple and straightforward I have seen of any judge — he argues quite simply that capital punishment violates due process because a defendant cannot effectively pursue a subsequent claim of innocence if he (or she) is dead.

Judge Rakoff’s reasoning depends on the the possibility of innocent people being executed. Death Penalty proponents may argue that the phenomenon of “innoncence on death row” is a mere theory, and the constitutionality of capital punishment should be determined the actual fallibility of capital punishment. But Judge Rakoff’s research revealed “32 cases of exonerated prisoners who, he concluded, were ‘factually innocent’ — 12 were cleared through DNA testing and 20 through other means.” So the problem of an innocent person being sentenced to death is actually quite real, not just a hypothetical scenario. Even though his opinion was ultimately reversed by the second circuit, I will be interested to see what effect Judge Rakoff’s stance will have on the death penalty debate.

December 21, 2004

What’s Right With Kansas ::
legal — tagged , and
11:21 pm

I’ve been following with some interest the story of the Kansas Supreme Court overturning that state’s death penalty statute. According to the Tribune article, the Kansas high court found that “the law is weighted against defendants and must be rewritten by legislators.” As is generally the case with press reports of court decisions, this is a bit of an oversimplification of the court’s reasoning. It also may lead some readers to miss out on the importance of this decision — and other, similar ones that have been handed down by state courts lately.

Before talking about the importance of this decision, I thought it might be helpful to provide some background on death penalty statutes. In order for the statutes to be constitutional, the factfinder (usually a jury) must weigh both aggravating factors and mitigating factors before it determines whether a convicted felon should be sentenced to death. Aggravating factors might include the tactics used to kill the victim, the likelihood that the defendant might commit another crime, or the effect that the crime had on the victim’s family. Mitigating factors might include the overall disposition of the defendant, whether or not they have children (who would be more likely to depend on state welfare systems if the defendant was dead), or — once again — the likelihood of the defendant committing another crime. In these cases the jury must provide extra weight to the mitigating factors. In many cases, if the jury finds in favor of a single mitigating factor, they may be required to ignore all the aggravating factors, and thus spare the life of the defendant. This system is intended to have a “narrowing effect,” thus reserving capital punishment only for the most egregious crimes out there.

Now, I’m not a real capital punishment expert, and I have even less of an understanding of Kansas’ statutes. But the Tribune article suggests that the In addition to the statute being unconstitutional, it would also be potentially dangerous. It would run the risk of netting a lot more convicted criminals than would seem fair or effective. So in addition to protecting the constitutional rights of defendants who are death eligible, it seems that the balancing proceess described above should be heralded by death penalty proponents as well. A system that was weighted strongly toward the defendant would more likely result in capital punishment occurring only in the worst cases. (And that was the intent of the death penalty, right?)

In any event, if the Supreme Court grants cert on the case, it will be the second capital punishment-related case (that I know of) that came from a State Supreme Court. (The other is Roper v. Simmons, with certiorari granted to the Supreme Court of Missouri.) This suggests to me that not only the Supreme Court of the United States, but the high courts of all of the states that still have the death penalty are thinking more seriously about the constititutional legitimacy of the death penalty.

And of course, those of us opposed to capital punishment hope that the the decision of the Kansas Supreme Court is — in one way or another — affirmed.