RUTLAND — The legal team representing convicted murderer Donald Fell is asking a federal judge for a closed-door hearing in one of the key arguments in Fell’s latest death sentence appeal.
In a 10-page motion filed last week, Lewis Liman, a New York City attorney representing Fell, asked Judge William Sessions to conduct a series of juror examinations scheduled to take place on Aug. 15 behind closed doors to protect Fell’s appeal and the privacy of the jurors from the potential adverse effects of public exposure.
The jurors who found Fell guilty in the 2000 killing of Terry King, of North Clarendon, will soon have their own actions and comments during the trial examined.
The conduct and statements of some of the jurors have been called into question by Fell’s appeal attorneys, who contend that his right to a fair trial may have been infringed.
“Mr. Fell is under a sentence of death and he has an exceptionally urgent need to protect his opportunity for the full and fair airing of the facts ...,” Liman wrote. “The Supreme Court has held that if even one member of a jury that has sentenced a defendant to death was not impartial, that sentence must be vacated.”
Assistant U.S. Attorney William Darrow, who asked Sessions last month for permission to interview the jurors, said he couldn’t comment on whether the government would respond to the request for a closed-door hearing or what stance prosecutors might take.
As part of a comprehensive, 350-page appeal, defense attorneys described interviews with a handful of unnamed jurors. In one case, a juror who told the court prior to the trial that she had never been the victim of a crime later told defense attorneys she was sexually abused as a child.
Defense attorneys say another juror acknowledged a criminal conviction that was never mentioned during jury selection and another juror said he made an unsanctioned trip to Rutland during the trial to inspect the crime scenes, according to the defense appeal.
The same juror who made the trip told defense attorneys that he pointed an unloaded shotgun — a key piece of evidence in the case — at another juror during deliberations to make a point.
Prosecutors said Fell and his co-defendant Robert Lee used the unloaded shotgun to threaten King, whom the pair kidnapped and killed. Lee later killed himself in prison while awaiting trial.
While the actions and comments of only three of the 12-member jury were called into question in the appeal, Liman wrote that other members of the jury would need to be interviewed to determine whether their decisions were influenced by the actions of other jurors.
Liman said the judge should deny public access to the hearing with the jurors and seal, at least temporarily, the transcripts of the hearing, to ensure the jurors won’t balk under public scrutiny. Liman said that public exposure may have a “chilling effect” on the three jurors identified only by their juror numbers in the appeal. He also said other jurors who are questioned may also be hesitant to talk about issues that could be relevant to the case — including their “private history”
“(Closed door) proceedings will make it more likely that the court will be able to receive candid, unrehearsed and untainted answers from these jurors whose willingness to testify openly and honestly will not be negatively impacted by media coverage...” Liman wrote.
Protecting the privacy of the jurors was another concern the judge should consider, defense counsel argued.
While the identities of the jurors was released at the end of Fell’s trial and some of its members spoke publicly about the case, Liman said the upcoming hearings would place the jurors under far greater scrutiny.
“An open court hearing would effect a substantial intrusion in privacy beyond anything caused by the limited disclosures to date,” he wrote.
In particular, the three jurors whose conduct has been called into question would be identified and their conduct or personal histories would be explored at length, Liman wrote.
“There is a stark difference between revealing the fact of a juror’s sex abuse or a prior criminal conviction and discussing the details of these sensitive topics and how they impact the jurors and their family members in open court,” he said.
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