By Wilson Ring
Associated Press
MONTPELIER, Vt. (AP) - In an apparently novel legal argument, lawyers for a Vermont man facing a second federal death penalty trial are using a recent U.S. Supreme Court ruling that could expand sports betting nationwide to ask a federal judge to declare his potential punishment unconstitutional.
Donald Fell's attorneys say carrying out the federal death penalty law requires the assistance of state officials in violation of the high court's ruling, which overturned a federal law instructing state legislatures to adopt laws prohibiting sports betting. In its decision this month, the court limited what the federal government can require states to do.
In a federal court filing Monday, Fell's lawyers wrote that the Federal Death Penalty Act "is one of those isolated instances in which Congress attempted to extend its authority in unprecedented ways ... and Mr. Fell should not be subject to the death penalty in this case."
Vermont does not have a workable death penalty law.
Fell, 38, is facing a death penalty retrial in the 2000 kidnapping and killing of Terry King, a Rutland supermarket worker who was abducted when she arrived for work and later killed in New York. Fell was found guilty and sentenced to death in 2005, but the case was dismissed in 2014 because of juror misconduct. Jury selection for the new trial is set for September.
In the filing, Fell's attorneys noted that prosecutors did not agree with their argument. The Vermont office of the United States Attorney did not return a call Tuesday seeking comment.
Robert Dunham of the Death Penalty Information Center said the filing in the Fell case is the first he's aware of in which lawyers in capital cases have used what's known as the anti-commandeering clause of the U.S. Constitution to try to invalidate the federal death penalty.
"If they find something that they believe has a principled basis (for argument), they are supposed to raise it," Dunham said of the defense attorneys.
Because the federal death penalty law requires state help, Fell's attorneys are making the same argument as that used successfully in the sports betting case, said Vermont law school Professor Peter Teachout.
"I think it's very creative," Teachout said of the Fell filing.
The Fell filing cites some of the more than two dozen federal executions in the mid-20th century that were carried out by state officials acting for the federal government, including the 1953 execution of Julius and Ethel Rosenberg, who were executed in New York state's Sing Sing prison after being convicted of conspiracy to commit espionage for passing atomic secrets to the Soviet Union.
It also says the architects of the modern Federal Death Penalty Act, passed in 1994, wanted to require that federal executions be carried out by the federal government, but Congress retained a provision that requires the federal governments to make arrangements with states to carry out those executions. When states do not have death penalties, arrangements were to be made with nearby states that do.
There have been three executions by the federal government in the modern era. Oklahoma City bomber Timothy McVeigh was executed at the federal penitentiary in Terre Haute, Indiana, after he dropped his appeal. Another defendant executed there did not object to the execution process. The third execution involved using a different law, the Fell filing said.
Published: Thu, May 24, 2018
