Sunday, July 13th, 2008

Lethal Rejection

United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)

Donald Fell was not having a good day. During a card game, he killed his mother’s boyfriend, while his buddy, Charles Lee, killed Fell’s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car’s owner. Eight days later, they were arrested in Arkansas.

After Lee “accidentally[?]” hanged himself in prison, Fell faced a capital trial alone. He did not seriously contest his guilt, and was convicted. After a two-week penalty trial, the jury sentenced him to death, and Judge Sessions imposed that sentence. On appeal, Fell raised a series of challenges to the death sentence, all of which the court of appeals rejected.

Jury Selection

Fell’s primary complaint was that the district court improperly rejected for cause three potential jurors who were in fact qualified to serve. The court of appeals used a “substantial[ly] deferen[tial]” standard of review, in light of the district court’s “dependence on its direct observations of demeanor and subjective assessments of credibility,” and affirmed.

The first, Juror 64, had expressed strong reservations about the death penalty, but stated that she could nevertheless follow the court’s instructions and apply the law. Although viewing this as a “close[] call” the court found no error in her dismissal.

This juror had indicated, in a written questionnaire, that she strongly opposed the death penalty, although she could envision some circumstances, such as genocide or mass murder, that would warranted it. During voir dire, however, she indicated that she could follow the law and the “process,” although with further probing she vacillated somewhat, ending with a statement that she would “definitely lean more” toward life imprisonment. On the government’s motion, the judge excused her, finding that she could not be “fair and impartial.”

The circuit agreed. Although this juror said she could put aside her personal aversion to the death penalty and follow the law, she “walked a fine line” throughout her questioning. Accordingly, the district court’s conclusion that she could not be fair was within its “broad” discretion.”

The next juror, Number 141, indicated in the questionnaire that he was neither strongly in favor of nor strongly opposed to capital punishment. During voir dire, however, he several times said that he would not impose the death penalty absent evidence of premeditation. After extensive questioning, however, he reversed himself and indicated that he could consider a death sentence on the basis of reckless, but not intentional, conduct that resulted in death. The district court concluded that the question of this juror’s fairness was “so close” that it would be unfair to permit him to serve.

Again, the circuit found no error. The district court “properly
considered all of Juror 141’s responses in the context in which they were given and did not err in concluding that his views would significantly interfere with his duties as juror.”

The last challenge was to Juror 195, who, in writing, indicated that she was a strong supporter of the death penalty. During questioning, however, she repeatedly expressed uncertainty as to whether she could impose it if the decision were in her hands. The district court properly excluded her because her inconsistent responses created a legitimate doubt that she could follow the court’s instructions.

Evidentiary Issues

The court rejected several claims relating to the district court’s evidentiary rulings.

The government had originally offered Fell a plea agreement that would have resulted in a sentence of life imprisonment. Fell and his attorneys signed it, but the government did not. It submitted the agreement to Main Justice for approval, but the Attorney General rejected it. Fell wanted to enter the proposed agreement into evidence, but the district court would not let it in. Instead, it permitted him to admit a stipulation that provided that he had unsuccessfully offered to plead guilty in exchange for a life sentence.

In summation, Fell argued that this stipulation showed that he had accepted responsibility, while the government argued, in rebuttal, and with no objection, that it did not. The government argued that Fell only offered to plead because he knew the evidence against him was overwhelming. The prosecutor also argued that the government had rejected the offer because it wanted a jury to decide the penalty, that Fell’s plea of not guilty forced the government to try him, and that Fell could still have pled guilty if he wanted to.

On appeal, the court upheld the exclusion of the plea agreement itself, describing the ruling as within the court’s “traditional authority” to exclude evidence of marginal relevance.

It was more troubled by the prosecutor’s rebuttal comments, but found no plain error. First, it found the record “virtually conclusive” that the jury understood that Fell was willing to plead guilty. Thus, the rebuttal did not open the door to the admission of the plea agreement itself.

The court separately analyzed the government’s arguments that, as a result of Fell’s pleading not guilty, the government had to try him, and that he could have pled guilty if he wanted to. The court began by warning that prosecutors are not supposed to make comments that “trench[] on the defendant’s constitutional rights and privileges.” Nevertheless, in a page surely copied right out of the government’s brief, the court characterized the government’s comments as simply an effort to place Fell’s use of the stipulation “in context,” and hence as a “reasonable” response to Fell’s own arguments.

Fell next claimed that the government, in its summation, improperly argued that the jury should reject mitigating evidence – in particular, that relating to Fell’s horrendous childhood – that did not relate to the crime itself. Although, in a footnote, panel revealed some disagreement as to whether the comments were even improper, the court in any event found no plain error. The district court’s instructions made clear that the jury must consider all of the mitigating information, that the arguments of counsel were not evidence, and that if those arguments differed from the court’s instructions the instructions controlled. Here, moreover, the verdict form indicated that the jury credited the mitigating evidence relating to Fell’s background and childhood.

The court also considered – and rejected – several other highly fact-specific evidentiary claims, most of which were not objected to below, and a claim regarding their cumulative impact: (1) the timing of a hearing on some expert testimony; (2) evidence concerning Fell’s apparent religious beliefs which, although troubling, was proper in “context” and not prejudicial; (3) out-of-court statements of his mother indicating that she was afraid of him – an “excited utterance”; and (4) Fell’s own out-of-court statements indicating a willingness to commit multiple murders and his desire to kill his mother, offered to rebut Fell’s claims regarding background.

Aggravating Factors

The court next held that three of the non-statutory aggravating factors, all of which related to Fell’s participation in the carjacking victim’s death, did not improperly overlap, even though they were supported by the same evidence.

The Indictment

The court rejected Fell’s argument that the indictment was defective because it did not allege the non-statutory aggravating factors. The court disagreed, holding that only those factors that comprise death eligibility – intent and statutory aggravators – need be alleged in the indictment.

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