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A fiery debate over the federal death penalty law surfaced last week at the U.S. Court of Appeals for the Second Circuit. Judges Reena Raggi and Guido Calabresi squared off over whether the circuit should rehear en banc a three-judge panel’s 2008 decision upholding the conviction and death sentence against Donald Fell, who was found guilty by a Vermont federal jury in the 2002 kidnapping of a convenience store worker in Vermont and her murder across state lines in New York. The panel that ruled in United States v. Fell, 531 F.3d 197 (2d Cir. 2008) included Judges John M. Walker Jr., Jose A. Cabranes and Barrington D. Parker. A majority of the court voted against rehearing en banc. But Judge Calabresi wrote a lengthy dissent saying he was concerned about the imposition of capital punishment for crimes that covered two states that have either abolished the death penalty (Vermont) or held it constitutionally infirm, (New York). He said it was important for the full circuit to review the case, including the exclusion of a potential juror who opposed the death penalty but said she could nonetheless follow the trial judge’s instructions. Judge Calabresi noted the U.S. Constitution’s framers believed the local nature of the jury and their local values were so important that they insisted not only on impartiality in the Sixth Amendment, but also required vicinage—that juries come from “the State and district where the crime shall have been committed.” “The relevant community values in the instant case are constitutionally defined as those of Vermont,” Judge Calabresi said, adding later “if those values, and the Vermonters who hold them, were improperly excluded in this case, then the sentence the jury selected must fail.” But Judge Raggi had the numbers on her side and she took the rare step of issuing a lengthy opinion in United States v. Fell, 06-2882-cr, in the denial of a rehearing. The judge said she was “skeptical of the dissent’s suggestion that federalism requires each state’s adoption or rejection of the death penalty somehow to be factored into the selection of federal capital juries serving therein.” The suggestion that the Sixth Amendment requires more solicitude of “local” values in jury selection would be “rejected out of hand,” she said, if the “‘value’ revealed at jury selection were opposition to the sorts of civil rights, environmental, or gun trafficking requirements that are enforced through federal criminal law in ways not always mirrored by state legislation.” Judge Raggi’s opinion was joined by Judges Dennis Jacobs, Richard Wesley, Debra Ann Livingston and two members of the original panel, Judges Cabranes and Parker. Judge Walker, now a senior judge, authorized Judge Raggi to note his agreement with the opinion. Along with Judge Calabresi, Judges Rosemary A. Pooler and Robert D. Sack dissented from the decision to deny rehearing. Judge Chester J. Straub, who voted to rehear en banc and then took senior status, endorsed Judge Calabresi’s opinion. It was not revealed how Judges Sonia Sotomayor, now awaiting her confirmation hearing for the U.S. Supreme Court, and Judge Robert A. Katzmann, voted on the rehearing issue and neither joined the concurring or dissenting opinions. Judge Peter Hall recused himself. Kidnapping and Murder Mr. Fell and codefendant Robert Lee stabbed to death Mr. Fell’s mother, Debra, and her companion, Charles Conway on Nov. 26, 2002 in Rutland, Vt., then kidnapped convenience store clerk Teresca King, stole her car, drove her across the border into New York State and beat her to death in a wooded area. In 2002, Vermont District Court Judge William K. Sessions III ruled the Federal Death Penalty Act violated due process because of “relaxed evidentiary standards in the penalty phase of federal capital cases” (NYLJ Sept. 25, 2002). The Second Circuit reversed, holding in part that the act’s evidentiary provisions were constitutional because they were consistent with the heightened reliability standards required for evidence in capital trials (NYLJ, March 3, 2004). Mr. Lee died before trial. Local prosecutors were not in favor of seeking the death penalty, but they were overruled by the U.S. Attorney General. Mr. Fell’s conviction and death penalty sentence set up the first review of a capital case by the Second Circuit since capital punishment was effectively reinstated in the federal system in 1988. Local Values Judges Walker, Cabranes and Parker, in upholding Mr. Fell’s conviction in 2008, dismissed his arguments on exclusion of the prospective juror and also found the refusal of the trial judge to allow a draft plea agreement into evidence was not an error. Mr. Fell had claimed the prosecution misrepresented his willingness to plead guilty by telling the jury he could have pleaded guilty if he wanted to ( NYLJ, June 30, 2008). Judge Calabresi, in his dissent last week, also said he felt the full circuit should consider the plea issue. “[T]he draft plea was important not only, as the panel suggested, because it showed Fell’s willingness to admit responsibility for the death of Teresca King…but also because it showed that the local prosecutors were willing to accept a sentence of life imprisonment in exchange for that plea,” he said. Judge Calabresi noted that, since 1988, “local federal juries have repeatedly and overwhelmingly rejected Washington’s invitation to execute criminals in their states.” “What is going on here is that the existence of certain local values makes the imposition of the federal death penalty in states that do not have the death penalty truly uncommon,” he said. Judge Calabresi said the concurring opinion “misses the point” and “appeals to emotion” by “describing the viciousness of the murder” when the only thing his argument is focused on was “the role of prosecutors, and whether the jury had been properly selected.” The judge closed by saying he was not a great believer in en bancs but that rehearing here “would help us all think about the important issues…that are raised by the potential, nationally ordered, execution of a man in a state whose laws forbid it.” Judge Raggi had little regard for Judge Calabresi’s “federalism argument.” She disagreed that the potential juror in the Fell case was “willing to follow the law,” despite her opposition to the death penalty. The trial judge, she said, found the juror could not satisfy the standard for impartiality. “The juror was properly removed regardless of the vicinage,” she said. Judge Raggi said federalism is about the distribution of power between states and the national government and selection of a federal jury to hear a federal case “does not intrude on any state function; much less does it trench on the exercise of any state power.” While the vicinage requirement “permits the jury to operate as the conscience of that community” she said that “function is satisfied by drawing a jury pool from a fair cross-section of the residents of that particular state and district.” Judge Raggi rejected as “misguided” the dissent’s claim “there lies a deeper constitutional question” — that the Eighth Amendment prohibition on cruel and unusual punishment should be considered because the death penalty is “unusual” in Vermont. For one thing, the crime that triggered federal jurisdiction was the killing of the victim in New York after crossing state lines. For another, she said, the New York Court of Appeals 2004 decision invalidating the death penalty cannot be taken as a sign of the popular will in New York. And it was a mistake, she said, to speculate on the reason why so many federal juries in New York have declined to impose the death penalty. Assistant U.S. Attorney William B. Darrow represented the government. John Blume of Cornell Law School and Federal Public Defender Alexander Bunin represented Mr. Fell. Mr. Bunin said the attorneys are now preparing a petition for a writ of certiorari for the U.S. Supreme Court. “There were a lot of issues in the case but the main one we brought up was the exclusion of three jurors,” Mr. Bunin said. “But understand, we did not raise the issue of federalism which Judge Calabresi brought up and Judge Raggi disagreed with.” @

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