Sunday, 7 October 2007

Lethal injection case may affect Vermonter on federal death row

October 7, 2007
By Alan J. Keays Staff Writer

A constitutional challenge to execution by lethal injection will be taken up by the U.S. Supreme Court, and the case is being closely watched in Vermont. Donald R. Fell, the first man sentenced to die in Vermont in more than a half century, would likely face lethal injection should he exhaust all appeals, a process legal experts say could take more than 10 years.

Fell is on federal death row in a Terre Haute, Ind., prison, following his conviction two years ago on federal capital crimes for his role in killing a North Clarendon woman, Terry King. The crime started with a carjacking in Rutland and ended with a beating death in New York.Vermont is one of a dozen states without a death penalty statute. Fell was prosecuted under federal law because his offense involved crossing state lines.

Fell's lawyers are appealing his death penalty sentence and say they are keenly aware of the legal wrangling playing out before the nation's highest court regarding the constitutionally of lethal injection.The U.S. Supreme Court agreed to take up a legal challenge from two death row inmates in Kentucky who claim that lethal injection is cruel and unusual punishment.I

t's a case that could affect how inmates, including Fell, are executed, or depending on how far-reaching the high court's decision is, if they will ever face execution.

Fell's case is in the early stages of the appeal process. His attorneys are challenging issues regarding the jury selection and sentencing phases of his trial, which was held in U.S. District Court in Burlington. The lawyers say that because the appeal is pending there is little they can say about the case.

For Fell, any challenge to the legality of the method of execution is still likely years away, his attorney said."If they were to decide sometime this year that lethal injection was unconstitutional then I suppose they'd have to figure out if there is a method of execution that is constitutional," said Alexander Bunin, a federal public defender representing Fell. "It would have an affect at some point, but I can't tell you right now how."

King's sister, Barbara Tuttle of North Clarendon, said she is watching the U.S. Supreme Court case closely."It will affect the death penalty as we know it, whatever way they decide," she said. "Obviously, we're interested in this case. We want Donald Fell executed. We wish they would hurry up and get this over with."

Michael Mello, a Vermont Law School professor and death penalty expert, has been lecturing to his students on the importance of the upcoming case before the nation's highest court. He teaches a seminar on capital punishment at the state's only law school in South Royalton. He also teaches a class on constitutional criminal procedures."It's something I've been following neurotically close, as anyone who has been a student in either one of my classes would attest," Mello said. "Certainly, Donnie Fell is the person in Vermont who this case most directly affects."

Fell's case was the first death penalty trial in nearly 50 years in Vermont. Fell was ultimately convicted of capital crimes for abducting King, 53, as she showed up for work at a downtown Rutland supermarket in November 2000.

After the carjacking, police said Fell and another man drove her to New York where she was beaten to death. Fell's alleged accomplice died in prison before standing trial. Police said the two men abducted King because they needed a vehicle as they were fleeing Rutland after killing Fell's mother and her friend.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said Fell is one 53 condemned prisoners on federal death row. Eight inmates, like Fell, come from a state that does not have a death penalty statute of its own."It could definitely have an impact Fell's case because the Supreme Court is going to consider the standards for lethal injections, not just in Kentucky, but generally what would be acceptable under the Constitution," Dieter said. "The federal government has used lethal injection for all its executions so far."

It's the first time the U.S. Supreme Court has agreed to decide whether the mixture of three drugs that are used in lethal injections to carry out executions in Kentucky and other states is constitutional under the Eighth Amendment, which prohibits cruel and unusual punishment."There's actually a very narrow issue that's before the Supreme Court," Mello said. "It is whether this particular method of lethal injection is constitutional, with this particular set of drugs, in this particular pharmaceutical sequence, represents cruel and unusual punishment."

The drugs used in lethal injections include one designed to relax muscles, another to serve as an anesthetic and a third to stop the heart. Mello said the legal challenge before the U.S. Supreme Court centers on the pain level felt by a condemned person when the "three-drug cocktail" is administered. The law professor said he doesn't expect the court to issue a ruling striking down the death penalty."I could very definitely see them declare this particular lethal injection technique unconstitutional," he said, adding that he believed the court would limit its decision to that particular matter.

"What they could say is come back to us with something different … The new system might just be new drugs, or new administration of lethal injection through some addition training by those carrying out the execution."Mello added that depending on the ruling by the nation's highest court, executions could be put on hold around the country until a "constitutionally-accepted" manner of lethal injection is developed.

"If there's no constitutionally acceptable way of carrying out executions then there's no death penalty," the law professor said.

Rachel Lawler of Vermonters Against the Death Penalty, a group that formed prior Fell's trial more than two years ago, said that while she is waiting to see how the U.S. Supreme Court addresses the most recent death penalty case before it, she had hoped the court would take up a more direct challenge to the death penalty.

"The recent news of the Supreme Court hearing a case of unconstitutionality of lethal injection is an important step forward in our country," she said. "However, the issues that the justices will be addressing is whether the method of lethal injection is unconstitutional; they will not be addressing whether the death penalty, in and of itself, is unconstitutional."

She added that she hoped the nation's highest court will strike down the current lethal injection process used in carrying out death sentences. "Lethal injection is only humane to those who watch the process, not to those who undergo it," she said.Dieter said it's hard to predict how the U.S. Supreme Court would rule on the case before it, or what they will require to make lethal injection constitutional.

"The court will likely set the standards for how lethal injections can be carried out and then states will try to meet those standards," Dieter said. "You do get a sticking point if lethal injection itself is somehow impossible to carry out and states don't have any alternatives."

Contact Alan J. Keays at

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