Death penalty ruling may have broad impact

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(Host) Lawyers and scholars say a death penalty decision handed down Tuesday by a Vermont judge may provide new legal argument for those challenging capital punishment.

VPR’s John Dillon reports.

(Dillon) Federal Judge William Sessions ruled in a case involving accused murderer Donald Fell. The 22-year-old Rutland man allegedly kidnapped and killed a Clarendon woman two years ago.

The murder was extremely brutal. Fell allegedly beat his victim to death as she pleaded for mercy. The Justice Department cited the heinous nature of the crime when it sought the death penalty for Fell.

But Sessions said the federal death penalty law is unconstitutional because it allows the government to use evidence in the sentencing phase of a case that it could not use at trial.

Alex Bunin is one of Fell’s lawyers. He says the law allows the government to cite the severity of the crime when it seeks the death penalty:

(Bunin) “However, under the federal death penalty act, those aggravating factors would have been proven at a sentencing hearing where the rules of evidence did not even apply. And the judge said you can’t do that, you can’t have elements of the case that are not subject to the rules of evidence.”

(Dillon) Under the constitution, defendants must be allowed to confront their accuser through cross examination of witnesses. But the government wanted to rely on statements from Fell’s alleged accomplice, who has since died. Sessions said that violated Fell’s constitutional rights.

In citing three recent federal court decisions that have forced judges to re-examine how the death penalty is imposed, Sessions wrote: “Capital punishment is under siege.”

Defense lawyers are now likely to use Sessions’ decision as one more legal weapon in their battle against capital punishment. Vermont Law School professor Michael Mello says he expects the Vermont case to come up around the country. Mello expects it to be cited in a very high profile death penalty case of a man named as part of the September 11 plot.

(Mello) “Zaccarias Mussouai’s lawyers will be filing what will probably come to be known as a ‘Donny Fell motion’ before the week is out, if they haven’t done so already.”

(Dillon) Although the Vermont decision is limited only to Fell’s sentence, Mello says Sessions’ legal analysis can be applied broadly.

(Mello) “Because it’s such a powerfully reasoned articulation of this area of the law, I would not be surprised if it has persuasive value beyond the relatively few numbers of federal death sentences. Because the problem he identifies, the constitutional problem in the federal death sentence, is a problem that exists in virtually all state death penalty statutes as well.”

(Dillon) Sessions suggested that the federal capital punishment statute could still be legal if Congress amends the law. The judge said, “It is inconceivable to this court that Congress could have intended instead to provide less protection in a capital proceeding, than a non-capital one.

For Vermont Public Radio, I’m John Dillon.

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