[Deathpenalty] death penalty news----TEXAS, N.C., ALA., LA., MO., OKLA., ARIZ., CALIF., USA

[Rick Halperin]

July 28



TEXAS:

Executions under Greg Abbott, Jan. 21, 2015-present----9

Executions in Texas: Dec. 7, 1982----present-----527

Abbott#--------scheduled execution date-----name------------Tx. #

10---------August 12----------------Daniel Lopez----------528

11---------August 13----------------Tracy Beatty----------529

12---------August 26----------------Bernardo Tercero------530

13---------September 2--------------Joe Garza-------------531

14---------September 29-------------Perry Williams--------532

15---------October 6----------------Juan Garcia-----------533

16---------October 14---------------Licho Escamilla-------534

17---------October 28---------------Christopher Wilkins---535

18---------November 3---------------Julius Murphy---------535

18---------January 20 (2016)-----Richard Masterson--------536

(sources: TDCJ & Rick Halperin)






NORTH CAROLINA:

Senate approves expediting changes to NC death penalty drugs


The state Senate has given approval to legislation expediting North Carolina's 
ability to obtain new drugs for lethal injections, overriding objections of 
death-penalty opponents who want more public input on the execution process.

Senators voted along party lines Monday in favor of the bill after hearing 
limited debate from Democrats, who in committee last week voiced strong 
concerns over transparency for the process that's been under fire following 
botched executions in several states.

After Sen. Angela Bryant, D-Nash, was unsuccessful in her attempts to add 
amendments countering the bill's most objectionable provisions, Democrats 
silenced their debate amid a busy schedule.

The bill could receive concurrence in the House this week, but its Republican 
sponsors cautioned it will likely face a lengthy legal challenge if passed.

(source: Associated Press)






ALABAMA:

'I don't trust court-appointed lawyers:' Mobile man to defend himself in death 
penalty case


Ignoring a judge's sound advice, Carlos Edward Kennedy choose on Monday to 
represent himself in his capital murder retrial.

"I don't trust court-appointed lawyers," Kennedy said, explaining his decision. 
"I don't trust them at all."

The bizarre case returned to Mobile County Circuit Court earlier this month 
after the Alabama Court of Criminal Appeals reversed the conviction of former 
Mobile County Circuit Court Judge Joseph "Rusty" Johnston.

Ruling that Johnston overstepped his judicial authority, the criminal appeals 
court stated that the judge should have let Kennedy represent himself instead 
of appointing an attorney to him against his wishes. The retrial is set for 
April 18.

In 2013, Kennedy was sentenced to death after he was convicted of raping and 
killing 69-year-old Zoa White inside her home in June 2010. Police found blood 
with DNA matching Kennedy, along with a palm print and a fingerprint.

Laurie Miller, White's daughter, called the decision to "absolutely 
heartbreaking."

"No family needs to go through this twice," Miller said. "It's a 
revictimization."

Mobile County Circuit Court Judge Charles Graddick, who is overseeing the case, 
told Kennedy multiple times that he was making a bad decision. In Alabama, all 
court-appointed attorneys in death penalty cases must have a minimum of five 
years of legal experience in criminal matters.

"Frankly, there are no advantages whatsoever with a layperson representing 
themselves," Graddick said. "Especially where a person was charged with an 
event that might cause them to lose their life."

On multiple occasions, Graddick asked Kennedy if he was sure of his choice and 
warned him of the repercussions.

"I think you're making a huge mistake," Graddick said.

As a precaution, Graddick appointed Mobile attorney Jason Darley to assist 
Kennedy with any legal issues if so requested. But Darley can't file any 
motions in the case unless Kennedy tells Graddick first.

"I don't agree with it, but it's your decision," Kennedy said.

Near the end of the hearing, Graddick explained some basic court procedures to 
Kennedy so that he knew how to act when the trial begins.

"I think it's going to be interesting to say the least," Graddick said.

(source: al.com)






LOUISIANA:

Federal judge throws out death sentence of man convicted in murders of 
Calendar's Restaurant employees


A federal judge on Monday threw out Todd Wessinger's death sentence in the 
shooting deaths 2 decades ago of restaurant co-workers Stephanie Guzzardo and 
David Breakwell.

U.S. District Judge James Brady ordered a new penalty phase hearing be held for 
the 47-year-old man who has been on death row for 18 years.

Brady's decision did not disturb Wessinger's 1st-degree murder convictions for 
the Nov. 19, 1995, shooting deaths of Guzzardo, 27, and Breakwell, 46, at the 
now-closed Calendar???s Restaurant on Perkins Road that Guzzardo managed.

Wayne Guzzardo, Stephanie Guzzardo's father, called Brady's ruling a stab in 
the back.

"We're so disappointed. It just took the wind out of us again," Wayne Guzzardo 
said Monday of his and his wife, Carol's, reaction to Brady's written ruling. 
"He has no compassion for the victims."

Brady, who held an evidentiary hearing in January and March on Wessinger's 
claim that his trial attorneys provided him ineffective assistance at the 1997 
penalty phase of his capital murder trial, ruled Monday that those lawyers were 
indeed deficient, thus violating Wessinger's constitutional rights.

"We believe the judge's ruling is the correct and appropriate decision under 
the law," said Rebecca Hudsmith, federal public defender for the Middle and 
Western Districts of Louisiana and one of Wessinger's current attorneys.

East Baton Rouge Parish District Attorney Hillar Moore III said he has great 
respect for Brady but disagrees with his decision. Moore said his office will 
review the ruling and file an appropriate response.

"Everyone, including Wessinger, deserves a fair trial with competent counsel," 
Moore said. "It seems as if it is never the murderer's fault that the death 
penalty is imposed. It's lack of family upbringing, the police, prosecutor, 
court or defense counsel."

If the judge's ruling stands on appeal, Wessinger will be entitled to a new 
penalty phase hearing in the 19th Judicial District Courthouse.

Wessinger's attorneys had argued to Brady that one of his trial lawyers, the 
now-deceased Billy Hecker, was appointed to represent Wessinger just 6 months 
before the start of his trial and was ill-prepared.

Wessinger's attorneys also contend the jury never heard expert opinions about 
what they have described as Wessinger's recently uncovered, significant 
neurological problems, or from lay witnesses about what they claim are 
compelling family issues such as poverty, abuse, violence and alcoholism.

"The question remains, had these witnesses been contacted and had a mitigation 
investigation been done to reveal these lay and expert opinions, is there a 
reasonable probability that the result of the sentencing proceeding would have 
been different?" Brady asked in his ruling, adding that he did not ponder the 
question "lightly."

"After considering the mitigation evidence presented at the evidentiary hearing 
before us, which was not presented to the sentencing jury, this Court finds 
there is a reasonable probability that the evidence of Petitioner's brain 
damage and other impairments, as well as his personal and family history would 
have swayed at least one juror to choose a life sentence," he wrote.

Stephanie Guzzardo was making a 911 call when she was shot. She begged 
Wessinger not to kill her.

Wessinger, a former Calendar's dishwasher at the time of the killings, shot a 
3rd employee in the back, but that worker survived. Wessinger's gun jammed when 
he tried to shoot a 4th employee in the head.

"The evidence presented was overwhelming. This was a premeditated double 
homicide," Moore said. "Wessinger's clear intent was to murder everyone."

Brady noted that Hecker inherited Wessinger's case from Baton Rouge lawyer 
Orscini Beard in January 1997 after Beard was indicted on felony theft charges. 
Hecker's father died in April 1997. Wessinger was found guilty and condemned to 
die in June 1997.

Before Hecker died, the judge said, Hecker acknowledged in an affidavit that he 
did not hire a mitigation specialist to investigate the case.

(source: The Advocate)






MISSOURI:

Missouri Is 7 Times More Likely to Execute if Victim is White - 14 Times More 
Likely if Victim a White Female


A new study discovered that any convicted murderer in Missouri whose victim was 
white is seven times more likely to receive the death penalty than murderers 
with black victims, reported AllGov.com.

Researchers at the University of North Carolina at Chapel Hill found that the 
Missouri criminal justice system so randomly applies the death sentence that it 
could be unconstitutional. Murderers with white victims are 7 times more likely 
to be executed than if the victim was black. Murderers whose victims are white 
females are 14 times more likely to receive the death penalty.

The study also found that less than 40 % of murder victims are white, but 81 % 
of convicted murderers who received the death penalty killed a white person. A 
person's locale also influences the likelihood of receiving the death penalty. 
Someone convicted of murder in St. Louis County, where Ferguson is located and 
has a large black population, is 3 times more likely to receive the death 
penalty than someone from another county. If convicted in the City of St. 
Louis, the person is 13 times more likely to be executed.

This racial disparity isn't exclusive to the state of Missouri. It's prevalent 
across the entire country. Black people are arrested at a higher rate than 
white people for the same crimes. There's still an epidemic of racism in 
America.

(source: ringoffireradio.com)



OKLAHOMA:

Citing Breyer's Dissent, Okla. Inmates Want Death Case Reheard


After absorbing defeat in the U.S. Supreme Court lethal-injection case Glossip 
v. Gross in June, lawyers for three Oklahoma death row inmates decided to take 
advantage of what they saw as the decision's silver lining.

That bright spot was Justice Stephen Breyer's unusual dissent that declared the 
time had come for the court to take a full re-examination of capital 
punishment, rather than a piecemeal approach.

The inmates' legal team on July 24, citing Breyer's dissent, urged the Supreme 
Court to rehear the Glossip case. Justice Ruth Bader Ginsburg joined Breyer's 
dissent.

"We let things resonate a bit after we read the opinion," assistant Arizona 
federal defender Dale Baich told the NLJ on Monday. But Breyer's dissent kept 
coming back in conversation, and it seemed like a reason to continue the 
litigation, Baich said. "This was something new - an issue that was not 
briefed, but 2 justices decided to write about it."

Baich acknowledged that the court almost never rehears already decided cases, 
and the petition would not have been filed if not for the Breyer dissent. But 
the lawyers realized that the stories of each of the three Oklahoma appellants 
in the Glossip case illustrated the points Breyer made in his dissent, so it 
seemed worthwhile to file the new petition. "That is what makes this case a 
good vehicle for addressing the justices' concerns," Baich said.

"The 3 petitioners here are well suited to present the full briefing for which 
Justices Breyer and Ginsburg called, on issues such as the unreliability, 
arbitrariness, delay, and decline in the application of capital punishment, 
which render such punishment unconstitutional under the 8th and 14th 
Amendments," the petition said.

Breyer said that as currently carried out, capital punishment is unreliable and 
has resulted in the execution of innocent people. The rehearing petition notes 
that Richard Glossip (left) has long insisted he was innocent in the murder of 
his boss at an Oklahoma City motel. His conviction was based on one witness's 
testimony, which has since been called into question.

Another plaintiff, John Grant, also illustrates the arbitrariness of the death 
penalty that Breyer also discussed. Grant's lawyer was inexperienced and lacked 
the resources to present mitigating evidence, according to the petition.

Benjamin Cole, the third plaintiff in the Glossip case, has been in solitary 
confinement on Oklahoma???s death row for more than a decade. "He has not left 
his cell for years at a time," the petition states, adding that the conditions 
of his imprisonment has exacerbated his mental illness.

In his dissent Breyer highlighted the "dehumanizing effect" of long periods of 
solitary confinement on death row. The rehearing petition also mentioned 
Justice Anthony Kennedy's discussion of the "terror" and "infamy" of solitary 
confinement in the Davis v. Ayala case.

Oklahoma is not required to respond to the petition unless the Supreme Court 
requests that it do so. The state didn't immediately comment on the Glossip 
petition.

Even if the high court does not reconsider the Glossip case, Baich is hopeful 
the Breyer dissent will reverberate at the trial level and on direct appeal.

"I think it is going to be an issue that percolates up," said Baich, who has 
litigated death row appeals for 27 years. "The justices are saying these are 
issues they are interested in. Over time, cases may develop to the point where 
positions will change."

(source: nationallawjournal.com)






ARIZONA:

Death Penalty Upheld for Homer Roseberry Despite Ineffective Counsel


The Arizona Supreme Court upheld a 2003 death-penalty decision for Homer Ray 
Roseberry, an Arizona resident convicted of 1st-degree murder in the death of 
Fred Fottler. (In October, 2000, Roseberry agreed to transport about 1,000 
pounds of marijuana in his motor home for a drug cartel, while secretly 
planning to steal the drugs and resell them. But before the trip he was 
instructed by the cartel to bring along Fottler. This clearly didn't comport 
with the plan, so he killed Fottler as he slept in the motor home and dumped 
his body by the highway.)

The opinion, filed this morning, threw out Roseberry's claim that his previous 
lawyers did a poor job representing him, and instead concluded that Roseberry 
"suffered no prejudice from any deficient performance by appellate counsel."

After Roseberry's initial trial ended in a guilty verdict and a death sentence, 
his case went to the state Appellate Court. "The appellate attorney realized 
after he filed his initial brief that he had left out an incredibly important 
legal point, and the court refused to let him amend it," says Matthew Newman, 
Roseberry's current attorney. That important point, he goes on to explain, was 
no small detail.

Here's what happened: In 2002, right before Roseberry went to trial: The U.S. 
Supreme Court decided in Ring v. Arizona that a person could be sentenced to 
death by a jury only, not a judge. According to Newman, Roseberry's case was 
the first one the assigned judge had presided over during this new era of law, 
and he gave the jurors faulty instructions for how to consider evidence. 
Instead of telling them to consider all mitigating evidence - which, as Newman 
explains, "is anything whatsoever that might make a juror decide this guy 
doesn't deserve the death penalty" - the judge told them to only consider 
mitigating evidence that had a direct link to the case. (The legal term for 
this is causal nexus.)

To be clear, Roseberry was not barred from presenting his mitigating evidence, 
but the jury was instructed not to consider it unless it had a direct effect on 
the case.

The detail Roseberry's appellate attorney forgot to point out is that a year 
after the jury returned a death verdict, but two months before his case went to 
the appellate court, the decision in a different case, Tennard v. Dretke, found 
that instructing a jury to only consider some evidence violates the Eighth 
Amendment. Hence the basis for Roseberry's most recent appeal was that his 
appellate attorney messed up big time by not pointing this out and that 
Roseberry should be entitled to a new penalty phase hearing.

The Supreme Court "agreed with my argument that [jurors] have to be told that 
they need to consider all mitigating evidence," Newman says, but then the court 
claimed it performed its "own independent review of the case" and maintained 
that Roseberry deserved the death penalty.

"Our independent review of Roseberry's death sentence considered all the 
mitigation evidence presented, without requiring a causal connection to the 
crime, and we found it not sufficiently substantial to call for leniency," the 
court writes in today's decision.

So, to summarize, the Arizona Supreme Court said that even though Roseberry's 
previous attorney had made a mistake, the court independently looked over the 
entire case and decided capital punishment still was appropriate. "Any error in 
juror instruction was cured when this court considered all mitigation evidence 
[and] independent review serves as a constitutional means to cure sentencing 
errors," the judges write.

During Roseberry's initial trial, he presented 10 mitigating factors, 5 of 
which were considered causally connected to the case - that he could not 
"appreciate the wrongfulness of his conduct or...conform his conduct to the 
requirements of the law;" that at the time of the crime, he was "under unusual 
and substantial duress;" that he "was only a minor participant in the murder;" 
and that he couldn't have "reasonably" known beforehand "that his conduct 
[shooting a sleeping person 3 times at close range] would [kill the person;] 
and that he was 56 at the time of the crime.

The other 5 mitigating factors, which the jury was told not to consider, 
include "his love of family and his good character; his medical conditions, 
including diabetes, hypertension, sleep apnea, asbestosis, depression, and 2 
prior comas; mental impairment; the death of his 2 young children; and his lack 
of criminal history."

"In this case, the evidence was overwhelming that Roseberry killed Fottler so 
that he could steal the load of marijuana," the court writes today. "We 
therefore conclude that the [previous] court did not abuse its discretion in 
denying relief [to Roseberry's appeal] because any deficiency in appellate 
counsel's performance was cured by this court's independent review."

There is currently no date set for Roseberry's execution, and if it does 
advance in court, which Newman thinks is likely, the defense will file a stay 
of execution for the duration of the proceedings.

"If your lawyers do something wrong, the decision should be overturned [and the 
evidence reconsidered]," Newman says.

(source: phoenixnewtimes.com)






CALIFORNIA:

New court brief says judge botched Scott Peterson's 2004 trial


Scott Peterson got a bum trial in 2004, his appeals attorney says in the latest 
California Supreme Court brief from a case that captured attention around the 
globe and landed the Modesto fertilizer salesman on death row for the murders 
of his pregnant wife and unborn son.

"Because of various errors committed by the trial court, he did not receive the 
fair trial to which he was entitled," the document reads. Peterson's Oakland 
attorney, Cliff Gardner, blames Judge Al Delucchi, who died of cancer in 2008, 
for legal missteps, and not celebrity defense attorney Mark Geragos of Los 
Angeles, who gave up television commentary on the matter to lead Peterson's 
camp when the case ballooned to blockbuster status.

"The trial in this case was certainly not perfect," Gardner said in the 
document. "Far from it."

Another attorney is working on a separate but parallel effort to have Peterson 
freed from custody while waiting for Supreme Court justices to weigh his 
appeal.

Substitute teacher Laci Peterson, 27, was 8 months pregnant when she 
disappeared on Christmas Eve 2002. Her husband, then 30 and now 42, said he had 
been fishing in a newly purchased boat in San Francisco Bay and returned to an 
empty house; the badly decomposed bodies of mother and fetus washed ashore 
nearly four months later.

To escape pervasive publicity, Scott Peterson's trial was moved from Modesto to 
the Bay Area, where he was convicted of double murder in late 2004 and 
sentenced to die. Gardner formally appealed Peterson???s sentence in July 2012, 
focusing on Delucchi's alleged errors in jury selection and allowing evidence 
that helped prosecutors while barring testimony that could have helped 
Peterson's defense.

The office of California Attorney General Kamala Harris countered each 
objection in a January document, and Peterson's latest 181-page reply brief was 
filed Thursday with the state Supreme Court. Much of the document restates 
previous contentions, such as:

-- Delucchi improperly excused some prospective jurors because they shared 
objections to the death penalty on written questionnaires.

But 13 specifically stated in other answers that they might be able to set 
aside their views, to comply with the law, Gardner said in the latest brief. 
All should have been questioned verbally, but none were, Gardner contended.

"The improper exclusion of even a single juror based on opposition to the death 
penalty requires a new penalty phase," Gardner said in the brief.

-- The judge allowed testimony about a certified dog picking up Laci 
Peterson's scent at the Berkeley Marina 4 days after authorities believed her 
husband launched his 14-foot boat to dump her body. The dog had failed 2/3 of 
tests with similar conditions; "No case anywhere in the country has approved 
admission of such evidence with such a track record," Gardner said.

A study of scent tracking in 2011 - 7 years after the Peterson trial - 
concluded that dogs gave false alerts, or signs at having found a scent trail, 
85 % of the time when their handlers were aware of where the scent was supposed 
to be, Peterson's brief says. Prosecutors' reliance on tracking testimony 
"ignores case law, scientific research and common sense as well," Gardner 
concluded.

He additionally noted that "the FBI requires a success rate of 90 % before 
admitting dog scent identification evidence."

Also, Delucchi gave jurors "1-sided instruction" by telling them the dog 
evidence could be used to convict Peterson but not telling them that it could 
be used to acquit him, Gardner contended.

-- Delucchi prevented Geragos from showing a video of a similar boat capsizing 
under like conditions, with a man about Scott Peterson's size disposing of a 
mannequin about Laci's size in the bay. But the judge allowed prosecution 
testimony about stability experiments on the same boat model performed in a 
freshwater swimming pool in Indiana 25 years before the trial.

The judge offered to let Peterson???s defense camp recreate the experiment with 
authorities watching. That would have been "an indefensible intrusion" into the 
defense process, inconceivable in most courts, Gardner said.

-- After the trial was moved from Modesto to Redwood City, Delucchi refused a 
defense plea to move it again to Los Angeles.

Gardner cited another case that had been moved after a surveys found that 52 % 
of prospective jurors had been exposed to pretrial publicity, and a 3rd trial 
that moved when 30 % believed the defendant was guilty before hearing evidence. 
Yet Delucchi denied Geragos' request even though 96 % of prospective jurors in 
San Mateo County knew about the Peterson case and 45 % believed he had killed 
his wife.

"The publicity which attended the Scott Peterson trial was beyond anything any 
of the participants had ever seen," Gardner wrote. "If this is not an extreme 
case, then the term has lost all meaning."

-- Harris' office had noted that Geragos did not exhaust his peremptory 
challenges - his right to excuse prospective jurors without explaining why - 
and concluded that he must have been satisfied with those finally selected. 
That idea "has no basis in the real world. None," Gardner wrote. He contended 
that Geragos, having lost his motion to move the trial, knew from 
questionnaires the views of remaining prospective jurors and simply opted to 
"make the best of a bad situation."

-- A prosecution witness specializing in tides acknowledged he was not an 
expert on how bodies might be carried by water currents, yet Delucchi allowed 
him to testify about that very thing.

-- Harris' office made much of the fact that Scott Peterson rented 5 vehicles 
at different times to spy on dive teams searching for bodies in the bay, 
surmising that he was "checking to see if searchers were looking in the right 
place." But prosecutors left out that he also drove to the Medeiros boat launch 
area of the O'Neill Forebay at San Luis Reservoir, where authorities conducted 
a similar search, and watched, also speaking to no one.

"Under (prosecutors') theory, there was no reason for him to travel there," 
Gardner said.

Harris' office in January had said that Peterson was "fueled by the trifecta of 
selfishness, arrogance and wanderlust" and sought to escape marriage and 
impending fatherhood. They noted "overwhelming evidence," albeit 
circumstantial, of his guilt, including subscriptions to pornographic 
television programs less than 2 weeks after Laci vanished, selling her vehicle 
and considering selling their home less than a month later, stopping mail and 
using a nursery they had prepared for storage.

Gardner scoffed at prosecutors' "insistence that no errors at all were made at 
trial and that this was the perfect trial," at one point exclaiming with 
sarcasm, "The golden fleece has been found."

State Supreme Court justices could elect to weigh Gardner's appeal after or at 
the same time that they consider Peterson's request to be freed while awaiting 
the appeal; that petition has yet to be filed.

"This case gets in line behind their other cases, so it's not something that 
will happen quickly," said Birgit Fladager, who steered a team of prosecutors 
from Stanislaus County in the Peterson case before winning election as district 
attorney.

California has not had an execution in nearly a decade, and 751 condemned 
prisoners were on death row as of July 6.

(source: The Modesto Bee)






USA:

US priests join bishops' opposition to the death penalty


Voicing their nearly universal opposition to the death penalty, Catholic 
priests in the U.S. are supporting the United States Conference of Catholic 
Bishops' call to end capital punishment.

"As the largest association of Catholic priests in the United States, we 
endorse the bishops' stance," said Fr. Bernard Bonnot, chair of the Association 
of U.S. Catholic Priests' leadership team, in a press release. "As priests and 
pastors, we support the bishops in our prayers, in our preaching and in our 
public witness."

The endorsement comes as the USCCB calls for a recommitment to its 2005 
campaign, A Culture of Life and the Penalty of Death. "We urged a prudential 
examination of the use of the death penalty, with the aim of helping to build 
'a culture of life in which our nation will no longer try to teach that killing 
is wrong by killing those who kill. This cycle of violence diminishes all of 
us,'" wrote Cardinal Sean O'Malley of Boston and Archbishop Thomas Wenski of 
Miami in a July 16 joint statement. The 2 prelates are the chairmen of the 
USCCB's Committee on Pro-Life Activities and the Committee on Domestic Justice 
and Human Development, respectively.

AUSCP's April 2015 survey showed that 99 percent of its members who responded 
agreed that the organization should "support the call of Pope Francis to 
abolish capital punishment by endorsing the stance of USCCB's Committee on 
Domestic Justice and Human Development."

In a March 20 statement, Francis condemned capital punishment, calling the 
practice "inadmissible, no matter how serious the crime committed."

"It is an offense against the inviolability of life and the dignity of the 
human person," Francis said, adding that the death penalty "does not render 
justice to the victims, but rather fosters vengeance."

O'Malley and Wenski's statement encourages "all people of good will" to learn 
about the church's stance on this issue, as well as to pray for victims of 
crime, those on death row, and workers in the criminal justice system, and to 
"advocate for better public policies to protect society and end the use of the 
death penalty."

(source: National Catholic Reporter)

*****************

Fell inmate attack allegations will be part of case


Federal prosecutors in the murder case against a Vermont inmate are planning to 
use information during possible death-penalty proceedings about an alleged 
attack the man made on another death-row prisoner.

Prosecutors intend to seek execution for Donald Fell, 35, accused in the 2000 
kidnapping and killing of North Clarendon grandmother Terri King.

Fell was convicted and sentenced to death once before, but his conviction was 
overturned. He has pleaded not guilty to the murder.

A judge ordered the case retried after determining serious juror misconduct 
occurred during Fell's 1st trial in 2005.

Fell was on death row at the Federal Penitentiary in Terre Haute, Indiana, from 
2006-14, according to court documents.

A civil-rights lawsuit filed in Indiana alleges that Fell attacked death-row 
inmate James Roane Jr., 49, in 2012 at the behest of a 3rd condemned inmate, a 
member of the white supremacist group Aryan Brotherhood.

Federal prosecutors stated in a motion they plan to use information regarding 
the attack as proof of Fell's potential "future dangerousness" in the penalty 
phase of his retrial - assuming he's convicted. Defense lawyers also have 
requested documents about the incident, stating they need the material to 
defend Fell against the death penalty, court papers show.

The Burlington Free Press uncovered the lawsuit during an investigation this 
summer following vague mentions in court and in court paperwork about an 
unspecified incident involving Fell. Defense lawyers formally informed 
prosecutors of the lawsuit July 9, according to court papers. The Free Press 
report was published June 25.

The Federal Bureau of Prisons has yet to respond to a Freedom of Information 
Act request filed June 17 by the Free Press.

Prosecutors in July secured the release of Roane's medical records. Fell 
stabbed the inmate with a 10- to 11-inch metal shank in an attempt to kill him, 
according to the lawsuit.

Roane was convicted of murder in Virginia in the mid-1990s.

Fell's attorney John Philipsborn has asked the court to issue an order 
requiring disclosure of documents the defense seeks.

Fell's attorneys are seeking all records related to the Roane incident and to 
Fell's time in state and federal prison. However, Philipsborn wrote in court 
papers that there are "concerns about the completeness of available BOP 
records," referring to information held by the Bureau of Prisons.

Philipsborn also stated that government lawyer Bruce Hegyi traveled to the 
Federal Penitentiary in Indiana for an investigation of his own into the 
allegations. The lawsuit states that a guard ordered Fell to stop stabbing 
Roane, but Hegyi told Fell's attorneys that a third inmate might have broken up 
the fight, according to court documents.

"I did not see any followup interviews of that inmate," Philipsborn wrote, 
adding there also was no documentation of an interview of the inmate accused of 
having sanctioned the attack or with other inmates who witnessed the incident.

"I asked Mr. Hegyi about this state of affairs and in doing so indicated that 
in my experience such interviews are normally documented in BOP files," 
Philipsborn said. "Further, I am informed and believe that BOP has 
institutional staff that is involved in investigations of incidents such as the 
Roane incident of 2012."

Philipsborn declined comment when reached Monday by the Free Press.

Fell is not named as a defendant in the Roane lawsuit. He remains under a death 
sentence in the Terre Haute prison.

Federal prosecutors are planning to file in early September a notice of intent 
to seek the death penalty against Fell. Lawyers will continue discussing the 
disclosure of information at the case's next hearing, set for Sept. 11.

Since leaving death row, Fell is being held at the Brooklyn Metropolitan 
Detention Center in New York while his criminal case is pending in Vermont.

A jury trial is scheduled to begin in September 2016 in Rutland. Fell has 
pleaded not guilty to murder, kidnapping and car-theft charges.

Prosecutors say Terri King, 53, was kidnapped as she arrived for work at a 
Rutland Price Chopper by Fell and an accomplice. They later beat her to death 
in New York as she prayed for her life.

The accomplice, Robert Lee, died in prison before trial.

Fell won a new trial last year when U.S. District Judge William K. Sessions III 
ruled a juror on the original panel had investigated the case on his own, in 
violation of court orders.

(source: Burlington Free Press)