Prospective jurors weigh death penalty

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(Host) For the first time in fifty years, a Vermont jury is being asked to consider the death penalty. The process for selecting the jury in the federal murder trial of Donald Fell involves lengthy questioning by the judge and lawyers for both sides.

As VPR’s John Dillon reports, the questions force the potential jurors to confront the deepest moral issues of life, death and justice.

(Dillon) There’s a point in many of the jury interviews when the debate over capital punishment moves from theory to reality. It’s when the prosecutor comes face to face with the prospective juror and asks the central question.

The prosecutor turns and points to a heavyset young man across the wood-paneled courtroom. He is Donald Fell, accused of kidnapping and brutally killing a Rutland woman five years ago.
“This is no abstract proposition,” Assistant US Attorney Bill Darrow tells a young woman who sat alone in the jury box last month. “The man we’re talking about is right over there. Could you do it?”

The woman buries her face in her hands. “It would be tough,” she says quietly as tears run down her cheeks. “It’s the man’s life.” Darrow gently acknowledges the difficulty of the question. But he doesn’t let up. “What’s the answer?”

The woman responds that she could be fair, and that if she had to, she could vote for the death penalty. And Judge William Sessions qualifies her to be in the jury pool.

With some variation, this process is repeated for each member of the jury pool. The judge, prosecutors and defense lawyers probe the jurors’ background and their views on the death penalty as they try to find those who can be fair and impartial. Some answers reflect anguish and emotion. Virtually all the responses seem heartfelt and honest. It’s clear that these ordinary citizens feel an enormous responsibility.

Barbara Tuttle is in the courthouse every day. She’s the sister of Terry King, the fifty-one-year- old woman who was kidnapped and brutally murdered in November 2000.

As she takes a break outside the federal building, Tuttle says she’s impressed by the court procedure.

(Tuttle) And I think that just from listening to some of the jurors that have been questioned, I’m actually quite surprised we’ve had so many pro-death penalty jurors, or potential jurors, as what we’ve had so far. There’s definitely a disconnect between the Vermont Legislature and the general public.”

(Dillon) Vermont has not executed a prisoner since the 1950s. The death penalty is now outlawed in the state.

Donald Fell is on trial for his life because he faces federal carjacking and murder charges. In 2002, the U.S. Justice Department, under then Attorney General John Ashcroft, rejected a plea deal struck by local federal prosecutors that would have sent Fell to life in prison.

With so much at stake, Judge Sessions has given lawyers broad latitude in questioning the jurors. In a ruling last month, the judge allowed lawyers to bring up facts in the case as they question jurors. This means lawyers can raise hypothetical yet detailed questions about the crime and Fell’s life.

Paul Volk is one of Donald Fell’s lawyers.

(Volk) You have such intense feelings that you have to try to figure out the type of person that can and should be impaneled in a case of this magnitude. And you have to do it in a way that requires people to take as given facts, facts that have not yet been introduced, much less proven in a court of law. And that’s very unusual.”

(Dillon) There are two phases to the trial. The first will determine Fell’s guilt or innocence. If he’s convicted, the jury will then be asked to consider mitigating and aggravating factors as they weigh death or life in prison without the possibility of release.

A juror can be disqualified if he or she is so opposed to capital punishment that it would substantially interfere with a decision to impose the death penalty.

On the other side, jurors can be let go if they’re unable to consider anything that would mitigate against the death sentence. The defense is expected to introduce evidence that Fell was physically and sexually abused as a child. They also will try to demonstrate that he’s shown remorse for the alleged crime, and that he’s worked to rehabilitate himself in prison.

One woman was dismissed from the jury pool last week when she told lawyers she favored the death penalty and appeared unwilling to consider any mitigating circumstances. She also said that too much money is spent keeping prisoners in jail.

A middle-aged man was excused when he said he could never consider the death penalty, except possibly in the case of Adolph Hitler.

Attorney Volk says the goal is to find jurors who can set aside their preconceptions and fairly weigh the evidence. He says that’s why there has to be some discussion up front about the crime, and the alleged perpetrator.

(Volk) “The law is very clear that jurors have got to be able to be fair and impartial. And attempting to impanel a jury without asking them about the types of evidence that they are likely to consider in a case of this magnitude, is simply from my perspective is simply impossible.”

(Dillon) Prosecutors in the Fell case did not want to be interviewed. But in court, they’ve expressed the same goals as the defense.

Assistant U.S. Attorney Bill Darrow said last month – quote “We’re looking for jurors that would look at all the evidence from both sides and not make up their minds until they’ve heard everything.”

Still, there are obviously different strategies at work as each side tries to find a panel most sympathetic to their case. The defense has hired a jury consultant to help screen the panel. Fell’s lawyers also try to humanize the man accused of killing a woman as she literally prayed for mercy. They call him “Donny” and touch him gently on his shoulders as they introduce him to jurors.

Volk would not discuss the balance of men or women, young people or older folks that he’s trying to get on the panel.

Barbara Tuttle, the victim’s sister, is in court each day of the jury selection. The family also lobbied the Justice Department to seek the death penalty. She says they don’t want revenge, but justice.

(Tuttle) That’s all we wanted right from the beginning, is to have twelve impartial jurors listen to the case and have them be the ones to decide what the fate of Donald Fell will be. And our family has been seeking the death penalty because we feel that is the only justice in this case.”

(Dillon) For those selected for the jury, the three week trial will be a life-altering experience. Michael Mello is an opponent of capital punishment who teaches at Vermont Law School.

(Mello) I’ve always thought of capital jurors as being one of the invisible victims of capital punishment. Once a death sentence is returned, it’s just the beginning of years and years and years of legal process. And every time a case comes before a new court, or a new motion is filed it just rips the scab off of that wound for everyone involved, including the jurors.”

(Dillon) A pool of seventy-two people will ultimately be selected and from that group, twelve jurors and six alternates will be chosen. Donald Fell’s murder trial is scheduled to start June 20th.

For Vermont Public Radio, I’m John Dillon in Burlington.

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