A fed­er­al judge in Vermont has accept­ed a plea deal between Donald Fell and fed­er­al pros­e­cu­tors, per­ma­nent­ly remov­ing Fell from death row and end­ing a case that had raised seri­ous ques­tions about the con­sti­tu­tion­al­i­ty of the fed­er­al death penal­ty. Under the terms of the deal, approved by U.S. District Court Judge Geoffrey Crawford on September 28, 2018, Fell will serve a sen­tence of life with­out parole for the inter­state kid­nap­ping and mur­der of Teresca King in 2000. Fell and his co-defen­dant, Robert Lee, abduct­ed King in Rutland, Vermont, and drove her to New York state, where she was killed. Fell was con­vict­ed and sen­tenced to death in fed­er­al court in 2005, a sen­tence he could not have received if he had been tried in state court because Vermont does not have the death penal­ty. Fell’s con­vic­tion was over­turned and he was grant­ed a new tri­al in July 2014 as a result of juror mis­con­duct. Federal pros­e­cu­tors also charged Lee with cap­i­tal mur­der, but Lee com­mit­ted sui­cide in prison in 2001 before either defen­dan­t’s case went to tri­al. In November 2015, Fell’s lawyers filed a com­pre­hen­sive con­sti­tu­tion­al chal­lenge to the fed­er­al death penal­ty, argu­ing based on sig­nif­i­cant racial and geo­graph­ic inequities in its admin­is­tra­tion that it was unre­li­able, arbi­trary, and dis­crim­i­na­to­ri­ly applied. After a two-week-long evi­den­tiary hear­ing, Judge Crawford found that the fed­er­al death penal­ty ​“oper­ates in an arbi­trary man­ner in which chance and bias play lead­ing roles” and ​“falls short of the [con­sti­tu­tion­al] stan­dard … for iden­ti­fy­ing defen­dants who meet objec­tive cri­te­ria for impo­si­tion of the death penal­ty.” He nonethe­less allowed the death penal­ty to remain in the case, writ­ing that as a fed­er­al tri­al judge, he lacked ​“author­i­ty to rewrite the law so as to over­rule the major­i­ty posi­tion at the Supreme Court.” Fell’s lawyers lat­er unsuc­cess­ful­ly argued based on a March 2018 U.S. Supreme Court deci­sion strik­ing down a fed­er­al sports bet­ting law that the fed­er­al death penal­ty vio­lat­ed the 10th Amendment by con­script­ing state offi­cials to car­ry out exe­cu­tions. However, Judge Crawford did grant a defense motion to bar pros­e­cu­tors from pre­sent­ing var­i­ous state­ments made by Lee by pri­or to his death attempt­ing to shift blame to Fell for King’s mur­der. In July 2018, the U.S. Court of Appeals for the Second Circuit agreed with Crawford, call­ing Lee’s state­ments ​“unre­li­able.” The rul­ing left pros­e­cu­tors with­out key evi­dence to prove the extent of Fell’s alleged involve­ment in the killing, reduc­ing the chances that a jury would return a death sen­tence in the case. Fell is the 10th pris­on­er to be per­ma­nent­ly removed from the fed­er­al death row after hav­ing over­turned an uncon­sti­tu­tion­al con­vic­tion or death sen­tence. Sixty-two pris­on­ers are cur­rent­ly on fed­er­al death row.

(Alan J. Keays, Judge accepts plea deal; Fell sen­tenced to life, Vermont Digger, September 28, 2018; Jane Lindholm and Matthew Smith, Awaiting New Murder Trial, Donald Fell Continues Death Penalty Challenge, Vermont Public Radio, August 23, 2018; Alan Keays, Fell gets win on key motion as death penal­ty case advances to tri­al, Vermont Digger, July 23, 2018.) See Federal Death Penalty.

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