Killing Time 

Very few Vermonters know what it's like to be involved in a death-penalty case -- and for opponents of capital punishment, that's a good thing. Vermont is one of only 12 states in the nation without a death-penalty statute. Most people long assumed that the only vestige of capital punishment left in the state is the retired electric chair currently gathering dust in the Vermont History Center in Barre.

All that changed this week, as opening arguments began in federal court in Burlington in the trial of Donald Fell, the first defendant since 1962 to face the death penalty in Vermont. Fell, 25, is accused of stabbing to death his mother, Debra, and Charles Conway, both of Rutland. Fell is also accused of kidnapping and murdering Teresca King of North Clarendon, in November 2000. Fell's alleged co-conspirator, Robert Lee, hanged himself in prison in September 2001, after telling police that Fell had committed all three murders. If Fell is found guilty and sentenced to death, he will be executed by lethal injection in a federal prison in Terre Haute, Indiana.

One of the only attorneys in Vermont to have defended a condemned prisoner is Michael Mello. The Vermont Law School professor got his first taste of the capital-punishment system in the summer of 1982. A recent graduate of the University of Virginia law school, Mello was clerking for Federal Circuit Judge Robert Vance in Birmingham, Alabama, and was given the gruesomely titled job of "death clerk" -- he handled all the court's death-penalty cases.

Mello's first assignment was to draft an opinion in a case involving two African-American men, Joseph Thomas and Ivon Stanley, who'd been convicted of kidnapping and robbing an insurance salesman in Georgia. According to Mello, both men had had dreadful representation at trial and were facing death sentences. Through the luck of the draw, Thomas had been assigned one of the best post-conviction, death-penalty lawyers in the country. Stanley's attorney was woefully inept.

"Writing that draft opinion was one of the hardest things I've ever done," Mello recalls. "I still have nightmares about that case."

No wonder. A year after the opinion was written, Stanley died in a botched execution when Alabama's electric chair malfunctioned. One year later, the U.S. Supreme Court declared the jury instruction that had been used in his case unconstitutional. Co-defendant Thomas' conviction was later reversed.

"Everything that's wrong with capital punishment -- except innocence -- was part of that case," Mello recalls. "Exact same jury instruction, exact same crime, exact same case. Thomas was lucky. Stanley wasn't."

Mello later became a capital public defender in Florida, where he represented some 70 death-penalty defendants, including serial killer Ted Bundy. For years, Mello also corresponded with convicted mail-bomber Theodore Kaczynski, who once asked that he represent him as well. Mello declined. Not only was he writing a book about the Unabomber, but his former boss and legal mentor, Judge Vance, was himself killed in 1989 by a mail bomb.

Mello, who opposes the death penalty, has since written five books on the topic. He recently spoke with Seven Days about the Fell case. Mello has no involvement in the case and won't speculate about how the jury may rule. He will make one prediction, however: The lives of everyone involved will be altered by the experience.

SEVEN DAYS: What can you tell me about the death penalty in Vermont?

MICHAEL MELLO: The history of capital punishment in Vermont is absolutely fascinating. Very colorful characters, very colorful issues, including potentially innocent people sentenced to death and executed, class and race discrimination -- not against African-Americans, but against Irish and French-Canadians. In Vermont, as with everywhere else, if you have the financial resources, you have a much greater shot at justice ...

The last execution [in Vermont] was a double execution in the electric chair in 1954. In 1952, Francis Blair and Donald Demag escaped from the state prison in Windsor by crashing a laundry truck through the prison gates. They were caught two days later following an intensive search. Both were convicted of first-degree murder for the killing of a woman named Elizabeth Weatherup of Springfield, who'd been bludgeoned by a lead pipe and robbed during their escape. Her husband was badly injured but survived.

SD: What motivated the feds to seek the death penalty in Vermont for the first time in nearly 50 years? After all, U.S. Attorney Peter Hall didn't originally ask for it.

MM: My understanding is that [former U.S. Attorney General John] Ashcroft personally [made the decision]. There's a charitable explanation, a less-than-charitable explanation and a paranoid explanation. The charitable explanation is geographical consistency. Federal law, including the federal death penalty, ought to be applied uniformly throughout all 50 states. Whether you live or die shouldn't depend entirely on the fortuity of where you commit a capital crime. If you commit a carjacking with death resulting in Vermont, you shouldn't automatically not be subject to the death penalty; whereas, if you drove across the state line into New Hampshire, you would be. I have some sympathy for that [argument].

The less charitable explanation is that Ashcroft and Bush are really true believers in capital punishment because of their own history with the issue, especially Bush's history as governor of Texas for eight years. They have a missionary impulse when it comes to capital punishment, and they want to help spread its benefits to those 12 benighted holdout states -- probably all of which are "blue states" -- that don't have death-penalty statutes.

The paranoid explanation is that Bush and Ashcroft have it in for Vermont to some extent. For such a small state geographically and in terms of population, we've been a big thorn in their side ... Howard Dean during the campaign, civil unions, activist judges, gay marriage. How can one count the ways that Vermont annoys them?

SD: Will this case become a barometer for Vermonters' views on capital punishment?

MM: Oh, absolutely. It's already become that, which is remarkable to me because people don't usually start paying attention to [death penalty] cases until the trial starts. But there's been a lot of interest in the Donnie Fell case, almost since the crime happened. These kinds of crimes just don't happen in Vermont, and when you throw in the whole local prosecutors not seeking the death penalty ... The conventional wisdom is that it's very unlikely that a Vermont jury is going to sentence anyone to death. I think that [assumption] is absolutely wrong.

SD: Is Vermont as liberal on the death-penalty issue as people assume it is?

MM: No. Well, yes and no. This is one of those issues where I think there is a more stark dichotomy between what elite Vermonters think -- people like you and me -- and what average Vermonters believe. I've been involved a couple of times in the Vermont Legislature when capital-punishment bills have been introduced, and in those instances, there was no doubt in anyone's minds that those bills weren't going to go anywhere ... But my own experience at my local convenience store is that with average Vermonters, especially native Vermonters, it's about 50-50.

If you go back and look at Doyle surveys [done annually on Town Meeting Day by Republican State Senator William Doyle], he's asked about capital punishment seven times in the last 10 years. The most recent time was in 1999. And what he got back was 48 percent in favor -- saying it should be restored -- 41 percent said it shouldn't be, and the rest undecided. So, by a slight margin, if the Vermont Legislature accurately reflected the will of the people, at least according to this poll, Vermont would restore the death penalty.

SD: Do juries in capital-punishment cases tend to consider the broader political ramifications of their verdict when they deliberate, or do they tend to focus strictly on guilt versus innocence?

MM: It's impossible to ignore the larger context. But having said that, in my experience, jurors, and especially jurors in federal trials presided over by first-rate, really superb judges -- and [Judge William] Sessions is one of those, in my opinion -- do a remarkable job of doing their job. In trying to read the tea leaves on what this jury is going to do, the first and most important thing is that all reading of tea leaves is bogus. The jury doesn't know what it's going to do, and anyone who tells you otherwise doesn't know what they're talking about.

Second, this is a jury that, by definition, has been culled of all staunch opponents of capital punishment, as well as staunch supporters of capital punishment ... One effect of that process, if the social scientists are to be believed, is that that process results in juries that are unnaturally prone to convict.

SD: Why is that?

MM: It's more likely that you're going to be tossed [from the jury] if you come into the process opposing it rather than supporting it. This is a gross generalization, obviously, but it's one that's supported by social-science research and the anecdotal experience of zillions of capital trial lawyers, prosecutors and trial lawyers I've talked to over the years. If you oppose capital punishment, it's more likely that you'll, for example, tend to treat police officers' testimony with more skepticism than you would otherwise. It's more likely that you're a person of color. You're more willing to believe defense witnesses and the defendant if he takes the stand. This isn't going to be true for every single person or even most people. But to generalize, opposition to capital punishment tends to carry along with it other values and beliefs that tend to favor the defendant over the prosecution. And the flipside is true for strong proponents of capital punishment.

SD: Would a death sentence in the Fell case be more likely to galvanize opposition to capital punishment in Vermont -- as it did around the Karla Faye Tucker case in Texas -- or more likely to create momentum for reinstating the death penalty?

MM: I've always said that no state without capital punishment is farther away from bringing it back than one hideous murder. That's all it takes. In Vermont, if anything about the Fell case was going to galvanize support for bringing it back, I think it would have been the crime. And to the extent that this trial is going to be about the crime, it's going to dredge that all back up, as it should.

SD: Fell can be convicted of the crime but not sentenced to death, correct?

MM: Absolutely. Two-part trial, same jury. The best way to think about the penalty phase is, it's a whole separate trial devoted solely to one issue: Does the defendant deserve to die? Has he lost his moral entitlement to live?

SD: What kind of enduring emotional or psychological impact can a guilty verdict have on jurors in this case?

MM: The short answer is, no one is quite the same after this close an encounter with capital punishment. And it's not just the jurors [but also] all the lawyers involved [and] the court personnel. Capital punishment affects everyone it touches, not always in dramatic ways, but in inchoate ways. And the more involved I've been in capital punishment as a system, the more convinced I am that perhaps the strongest reason for abolishing it is what it does to the people who are required to participate in this killing process. Which isn't to say that we shouldn't have the process. But it is to say that we shouldn't have the process unless there is a very compelling, damn good reason for doing it. And there isn't.