MONTPELIER >> A Vermont man facing a second federal death penalty trial for the abduction and murder of a supermarket worker almost 16 years ago is asking the federal judge hearing the case to declare the death penalty unconstitutional.
In a two-week hearing scheduled to begin Monday in Rutland, the attorneys for Donald Fell plan to outline why they feel the federal death penalty violates the Eighth Amendment to the U.S. Constitution that prohibits cruel and unusual punishment.
Attorneys across the country representing people facing death penalty trials, and those appealing already imposed death sentences, are making similar arguments, but the Fell case will be the first to make it before a federal judge, said Robert Dunham, the executive director of the Death Penalty Information Center.
"All the indicators are that the public is turning away from the death penalty," said Dunham, who is listed as a possible witness by Fell's defense team.
Dunham said seven states have abolished the death penalty since 2000 and prosecutors across the country are seeking the death penalty less frequently. Juries are imposing it less frequently, fewer executions are being carried out and there is evidence the death penalty is carried out more frequently in some parts of the country than others, he added.
Vermont U.S. Attorney Eric Miller declined comment, but a list of government witnesses expected to be called will testify the death penalty is still favored by a majority of Americans and it does have a deterrent effect on future crime.
Kent Scheidegger, the legal director of the California-based Criminal Justice Legal Foundation, which describes itself as supporting victims of crime, said he felt Fell's attorneys and death penalty opponents in general were making a mistake by asking a judge to rule on the constitutionality of the death penalty.
"By bringing this motion, they are going to actually have to submit this stuff as evidence and have an adversary hearing," Scheidegger said. "I hope that the government will pull out all he stops and show that these supposed facts are nonsense."
Fell, now 36, was arrested in 2000 and charged with abducting and later killing Terry King, a 53-year-old North Clarendon grandmother, as she arrived for work at a Rutland supermarket. Vermont has no state death penalty. Fell was charged under federal law.
In 2002, the judge then hearing the case, William Sessions, declared the federal death penalty unconstitutional. Two years later, the Second Circuit Court of Appeals overturned the decision, allowing the trial to go forward.
Fell was convicted in 2005 and sentenced to death. His conviction was overturned in 2014 because of juror misconduct. He is due to go on trial again early next year.
But as part of their appeal, Fell's defense attorneys asked U.S. District Court Judge Geoffrey Crawford to consider the constitutionality of the death penalty. In February, Crawford ruled there was "strong disagreement" in "judicial and scholarly" circles about the legality of the death penalty. He set the two-week hearing to take evidence on the issue and ultimately issue a ruling.
No matter what Crawford decides, the losing team of attorneys will appeal that decision. It's hoped that the Fell case, or perhaps another, will eventually make it to the U.S. Supreme Court where the justices will be asked to rule on the constitutionality of the death penalty, Dunham said.
"We don't know whether there are sufficient votes in the United States court to declare the death penalty unconstitutional," Dunham said. "The court might not even know."