Vermont to see first death penalty trial since 1954

BURLINGTON, Vt. -- Vermont, a famously liberal New England state that abolished capital punishment decades ago, is about to see its first death penalty trial in more than 40 years -- a case brought not by Vermont authorities but by federal prosecutors.

Some are wondering why the U.S. Justice Department is making a federal case out of the whole thing.

Jury selection got underway this week in Burlington for the trial of Donald Fell, 24. He is charged with carjacking 53-year-old Teresca King in Vermont in 2000 and beating her to death nearly 200 miles away in New York as she prayed by the side of the road. The trial is set to begin July 5.

No one has been executed in Vermont since two killers went to the electric chair in 1954. The last time anyone was sentenced to death in the state was 1957. The sentence was later commuted. The last time anyone even stood trial on capital charges in Vermont was in 1962.

Vermont's death penalty law was invalidated in 1972 when the U.S. Supreme Court decision struck down capital punishment. It was taken off the books in 1987.

"It's clear that the state doesn't want it," said Allen Gilbert, executive director of the state chapter of the American Civil Liberties Union. "Yet the federal government is coming in and imposing it on us. They are imposing a system of justice we rejected."

Despite Vermont's opposition to capital punishment -- and its liberal reputation as the home of gay civil unions, former governor Howard Dean and the only self-described socialist in Congress, Rep. Bernie Sanders -- one expert said Fell could end up receiving a death sentence because jury selection in capital cases tends to favor the prosecution by weeding out death penalty foes.

"It's pretty bewildering stuff because it's such an anomaly here. It's so un-Vermont," said Michael Mello, a professor at the Vermont Law School. "I think of Vermont as having a fairly liberal-progressive, political elite."

Prosecutors say that before the carjacking, Fell and his alleged accomplice, Robert Lee, also stabbed to death Fell's mother and a friend of hers in Vermont. But those slayings are not part of the federal case. Lee hanged himself in prison in 2001.

From the outset, federal prosecutors took charge of the case against Fell and Lee, charging them with carrying out a carjacking that ends in a death. Then-Attorney General John Ashcroft rejected a plea bargain that would have spared their lives.

Vermont's Acting U.S. Attorney David Kirby said the federal government had jurisdiction because the crime extended across state lines. And he added: "No other jurisdiction was particularly interested or wanted to prosecute the case."

Vermont Attorney General William Sorrell said he welcomes the federal government's intervention because it will spare the state the expense of prosecuting Fell. And Matt Weishaupt, a bureau chief in the district attorney's office in Duchess County, N.Y., where King's slaying took place, said the woman's family vehemently insisted that the federal government prosecute the case. (In any case, New York's death penalty law was found unconstitutional last year, and any death sentence obtained under the law would have been rendered invalid.)

A death sentence would be fine with King's relatives.

"He murdered three people in less than eight hours. What is the death penalty for if it's not this?" said King's sister Barbara Tuttle. She added: "Even though he's locked up and behind bars he can still communicate with his family, he can make friends. When I want to visit my sister I have to go to the cemetery."

Last year in Massachusetts, another liberal New England state that abolished capital punishment years ago, Gary Sampson was sentenced to death in federal court for a two-state carjacking spree in 2001 that left three people dead. Death penalty foes objected there, too.

The method of execution in Fell's case would be up to the presiding judge. But all three inmates put to death by the government since it resumed use of the death penalty in 2001 died by lethal injection.

Fell's attorneys suggested during jury selection that Fell had a chaotic childhood marked by sexual abuse and alcoholism around him.

In 2002, they persuaded a federal judge in Vermont to declare the federal death penalty was unconstitutional on the grounds that defendants sometimes are not allowed to cross-examine witnesses during sentencing. But that ruling was overturned last year a federal appeals court.

There have been no recent polls on the death penalty in Vermont, but over the years, several efforts in the Legislature to bring back capital punishment went nowhere.