RUTLAND — Prosecutors are asking a federal judge to order the turnover of defense interviews with jurors who sat on the death penalty case against convicted murderer Donald Fell.
Judge William Sessions, who presided over the 2006 trial in the killing of Terry King of North Clarendon, decided in May to further consider a wide range of complaints contained in Fell’s latest appeal.
Fell’s arguments, laid forth in a 350-page filing, range from ineffective counsel and prosecutorial misconduct to contentions of misconduct on the part of a number of jurors.
It’s the interviews that defense attorneys conducted with jurors that the U.S. attorney’s office is seeking to obtain in a motion filed in federal court last week.
In a seven-page filing, prosecutors say defense attorneys have ignored their requests to turn over the interviews in advance of an August hearing on the appeals.
While prosecutors and defense attorneys are usually privy to motions filed by the other side, that wasn’t the case with a request from defense attorneys who asked for and were granted approval from Sessions to interview jurors.
In the prosecutors’ motion, Assistant U.S. Attorney William Darrow wrote that the government was not made aware of the defense motion nor was it given the opportunity to respond to the request.
Prosecutors didn’t know about the interviews until months after they were completed, he wrote, because the judge ordered that both the motion and his decision be sealed.
“At this juncture, the government is completely in the dark about the facts and circumstances that led (defense lawyers) to request authorization to interview the jurors in this case and to the court’s subsequent order granting authorization (to the defense) to do so,” the motion said. “The government has no information with which to gauge the extent of the court’s authorization to (the defense.)”
U.S. Attorney Tristram Coffin said Tuesday it’s not uncommon for motions and decisions to be kept secret from either the prosecution or defense through the sealing of records.
But with the hearing in August closing in, Darrow wrote that his ability to prepare an argument about the alleged juror misconduct has been hamstrung after repeated requests to Fell’s New York attorneys have gone unanswered.
“The government simply cannot do its job blind,” he wrote.
In Fell’s appeal, interviews with three of the 12 jurors were described.
In one case, a juror who was asked if she or anyone close to her had ever been a witness or victim of crime answered “no” even though she was sexually abused as a child, the appeal claimed.
Another juror allegedly made an unsanctioned trip to Rutland during the trial to inspect crime scenes.
The juror, identified by defense attorneys simply as juror #143, reported what he saw to other jurors in the case, Fell’s appeal claimed.
The same juror later reportedly pointed an unloaded shotgun at a fellow juror while trying to make a point during jury deliberations — an act Fell’s attorneys said constituted intimidation of a juror.
The gun, which Lee and Fell carried from Robbins Street to Price Chopper the night King was abducted, was reportedly unloaded when the pair used it to threaten King while kidnapping her.
And the gun was empty when Juror #143 allegedly pointed the weapon at a fellow juror who wondered whether the fact that the weapon was unloaded at the time of the crime should factor into her decision on whether to sentence Fell to death.
In Darrow’s motion, he said prosecutors needed access to all the interviews defense attorneys conducted with the jurors.
Referring to the claim of juror intimidation, Darrow said prosecutors need to read what the juror who had the shotgun pointed at her had to say about the incident.
“Clearly the testimony of the juror who had the weapon pointed at her is highly relevant,” Darrow wrote. “Did she feel threatened? Did juror #143’s conduct cause her to change her verdict?”
In addition, Darrow asked the court to allow prosecutors to conduct their own interviews with all 12 jurors in the case.
Fell, 33, became the first person in more than 50 years to receive a death sentence in Vermont, after a federal jury made up of Vermonters recommended the sentence.
Fell has appealed the verdict twice without success and sought a hearing before the U.S. Supreme Court, which decided not to review the case.
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