• Fell jurors questioned about death verdict
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     | August 16,2013
     

    BURLINGTON — Two former jurors who handed down a verdict of death in the case against Donald Fell found themselves under scrutiny during often tense and testy testimony in a federal courtroom Thursday.

    More than eight years after a Vermont jury sentenced Fell to death in the November 2000 killing of Terry King of North Clarendon, two jurors who sat in that case were called to take the stand before Judge William Sessions to answer for conduct that Fell’s defense team is arguing infringed on Fell’s right to a fair trial.

    But while the attorneys contend that statements made by the jurors are proof of misconduct on their part, at least one of the jurors said the statements attributed to him were largely false.

    The juror, identified only as Juror 143, was called to the stand to talk about what was described as an unsanctioned trip during Fell’s trial to visit multiple crime scenes in Rutland.

    But the juror said he was misrepresented by defense investigators who he said interviewed him on a day when he was depressed from a recent breakup and had been drinking alcohol.

    “They simplified, contorted and actually left out a lot,” the juror said. “I told them I took the trip (to Rutland) after the trial.”

    The juror said he did tell investigators that he took a trip to visit the crime scenes in Rutland, but that it was in 2010, years after the trial.

    “They must have misunderstood,” he said. “I don’t remember if they specifically asked if I went to Rutland during the trial, but I did not.”

    The juror also denied making statements to defense investigators about an incident that reportedly played out in the jury room during deliberations over Fell’s fate.

    Fell’s attorneys say Juror 143 told them that during deliberations he pointed an unloaded shotgun — the same weapon which was unloaded when Fell and deceased co-defendant Robert Lee kidnapped King — at another juror who wondered whether the fact that the gun was empty at the time of the crime made a difference in whether to vote for the death penalty.

    According to Fell’s appeal, Juror 143 pointed the gun at the hesitating juror to demonstrate that she felt intimidated even when the weapon was unloaded.

    Juror 143 agreed with that account Thursday except for one key detail — he said no gun was ever present in the jury room and when he “pointed” a gun at the other juror he was only pretending to do so.

    Holding his hands up on the witness stand as if aiming an invisible shotgun, the juror said Thursday that he pantomimed what King would have seen to make a point.

    “I said ‘You don’t ask if a gun is loaded if it’s pointed at you. You just assume it is,’” he said.

    But in a lengthy and often strained examination by New York City attorney Lewis Liman, who is representing Fell, Juror 143 was asked to explain why he would sign his name to statements prepared by the defense investigators a day after their interview with him in 2011, and why he would initial each page and even correct or add to some of the statements.

    “Did you make these declarations and did you read through every paragraph before signing your name to each page?” Liman said.

    The juror said the signatures were his, but he said he felt pressured to make them by the presence of the defense investigators.

    The juror said he’d moved hastily through the statements which summarized hours worth of interviews he’d had with the investigators the day before.

    At one point, he described the process of signing the accounts as being akin to the rushed process of signing paperwork for a new car.

    He also said he didn’t realize until only weeks ago that the investigators represented Fell. He said he was under the impression that they were representatives from the federal court in Burlington.

    “When they first came to the door I thought they were Jehovah’s Witnesses,” he said.

    The juror also said he had difficulty with reading comprehension, describing himself at one point as “not the sharpest tool in the box” and at another point referring to his C+ average in high school.

    But after further questioning, the juror said he received a degree in biology at the University of Connecticut and worked for years as a biologist with the Vermont Agency of Transportation.

    The juror also said he suffered nightmares for years due to images he saw of King’s body during the trial and he said after the hearing that he was still wrestling with the events of the trial.

    “I’m trying to put this (expletive) behind me,” he said.

    The man wasn’t the only former juror to take the stand Thursday, but Sessions closed the doors to hear testimony from a woman identified only as Juror 162.

    In a rare order issued a day before the hearing that barred public access to the courtroom, Sessions decided that the potential trauma to the juror — who was called to talk, among other things, about a prior sexual assault — would be too great if her identity was revealed through her name, account or physical description.

    The windows to the courtroom doors were covered while the judge and attorneys in the case questioned the woman about why she did not reveal she’d been a victim of a crime when she was asked that question during the jury selection process.

    In a decision that Sessions described as being unique in his 18-year judicial career, he allowed about nine King family members to sit in on the closed hearing — under warnings that they could face legal consequences if they revealed any part of the proceedings.

    King’s sister, Barbara Tuttle of Rutland, didn’t violate that order after the hearing but she did say she didn’t like what she saw during the closed proceedings.

    “I don’t think what happened during the last session should have been allowed,” Tuttle said. “It was upsetting and our hearts go out to (Juror 162).”

    A third juror, who Fell’s defense team said did not disclose that he was convicted of a misdemeanor crime when he was asked about his criminal history during the jury selection process, was also scheduled to answer questions Thursday.

    But at the start of the hearings, Sessions said he had been notified that the juror was disabled and unable to travel from his home in the Northeast Kingdom.

    Since the juror is unable to come to court, the judge said he plans to travel across the state to a location near the juror’s home to hear his testimony. The judge did not schedule a date for the hearing.

    Liman and the federal prosecutors involved in the case declined to comment after the hearing.

    Fell did not attend Thursday’s hearing. He is incarcerated on federal death row in a prison in Terre Haute, Ind.

    brent.curtis@rutlandherald.com

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