Donald Fell
Donald Fell (Catholic Diocese Prison Ministry)

The conviction and death penalty sentence of Donald Fell for the 2000 abduction and murder of a Vermont woman was vacated Friday because of juror misconduct.

U.S. District Judge William Sessions in Vermont said Fell, convicted in 2005 in the abduction of Teresca King in a Rutland supermarket parking lot on Nov. 27, 2000 and her murder three days later, will get a new trial because a rogue juror, Juror 143, visited crime scenes during the trial and then repeatedly lied about it, and therefore violated “the ‘fundamental integrity’ of Fell’s trial.”

“For Fell, the integrity of the trial was a matter of life or death,” Sessions said.

The reversal was the result of years of work by a legal team led by Lewis Liman, a partner with Cleary Gottlieb Steen & Hamilton, who worked the case pro bono. The defense filed under 28 U.S.C. §2255 for a writ of habeas corpus in 2010.

Sessions held four days of hearings, including on Aug. 15 2013 when he heard testimony from Juror 143 and a second juror. A third juror under suspicion appeared on Sept. 27, 2013. Liman amended the petition on October 22, 2013 to add new factual allegations against the jurors.

Sessions also heard from Juror 143′s former girlfriend who implicated him and he also heard arguments from Liman that both the trial and the death penalty verdict were irredeemably tainted. By March of this year, Liman’s motion had expanded to 400 pages and included about 20 claims for relief.

Last week, Sessions concluded that Juror 143 lied about traveling to Rutland to view the crime scene, shared his observations with fellow jurors, lied to the court about his actions, lied during voir dire, allegedly coerced another juror into changing her vote, and again lied to Sessions during the hearings.

Less than a year after he and co-defendant Robert Lee were charged in the murder, Fell agreed to plead guilty and received a life sentence in October 2001, but then U.S. Attorney General John Ashcroft rejected the plea deal and Fell went on trial. Lee died in prison in 2001.

Sessions held in 2002 that the Federal Death Penalty Act was unconstitutional, (NYLJ Sept. 25 2002), but the U.S. Court of Appeals for the Second Circuit reversed in 2004. Fell then pleaded guilty in the case pursuant to an agreement that would leave for trial only the death penalty issue, an agreement also rejected by Ashcroft.

Fell was found guilty on all counts on June 24, 2005 and a unanimous jury voted for death on July 14, 2005. A three-judge panel at the Second Circuit upheld the sentence in 2008 (NYLJ June 30, 2008) and, one year later, following heated debate, a majority of the full circuit voted to deny rehearing en banc.

Friday, Sessions said Juror 143′s misconduct affected not just the integrity of the guilty phase of the trial, it also affected consideration of the aggravating and mitigating factors presented by the parties during the penalty phase and there was a “bias implicit in his intentional efforts to seek out extra-record information, his defiance of the court’s instructions, and his repeated false statements to the court.”

Some of the juror’s lies were exposed to the court by his former girlfriend, who reported that she went with the juror on his trip to the crime scenes and said he told her, “I can do what I want to do. I need to see this for myself.”

Fell’s attorneys claimed that Juror 143 intimidated a fellow juror during deliberations by taking the 12-gauge shotgun used by Fell, cocking it and pointing it at her, saying, “That’s what they did, you were scared even though you knew it wasn’t loaded.”

Sessions ultimately rejected the claim of juror coercion, but the crime scene visits and the lying were enough.

“Indeed, Juror 143′s brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial demonstrate a partiality that would have resulted in his eviction from the panel during trial, and now invalidates Fell’s conviction,” he said.

The government tried to attribute the lies told by the juror to the court to “regret or embarrassment,” but Sessions did not accept the excuse.

“Whether Juror 143′s falsehoods were driven by ‘regret or embarrassment,’ as proffered by the government, or were a result of intentional and flagrant disregard of the judicial process, there is no question that Juror 143 was exposed to prejudicial information that was never introduced at trial nor subjected to the judicial safeguards of cross-examination, confrontation and counsel,” Sessions said.

The judge denied Fell’s challenge to a second juror who failed disclose on voir dire that she had been, like Fell, the victim of sexual abuse as a child and failed to disclose her own son’s criminal history. He also rejected claims against a third juror who lied about their criminal history.

“While the Court is reluctant to turn back the clock on a matter that has required such significant resources in terms of time, effort, and, for some, emotion, it sees no alternative given Juror 143′s actions,” he said. “In particular, the court is mindful of the impact upon Mrs. King’s family, which has suffered for so long as a result of his tragedy.”

The prosecution was handled by Assistant U.S. Attorney William Darrow.

Liman in an interview said, “We are extremely gratified by the court’s decision. It was a careful and thoughtful ruling.”