[Deathpenalty] death penalty news----ALA., NEB., NEV., CALIF., WASH., USA

[Rick Halperin]

May 24



ALABAMA:

'I refuse to give them my joy': Man released after 28 years on death row 
describes new life of freedom----Ray Hinton 28 years on death row for 2 1985 
murders that occurred during separate robberies of fast-food restaurants in 
Birmingham



In his 1st day free, after nearly 30 years on Alabama's death row, Ray Hinton 
said he kept asking a question to his childhood friend.

'You just got to tell me we can stay out tonight that we don't have to go in 
after an hour,' Hinton said, referring to the hour limit that inmates got on 
yard time.

Hinton spent 28 years on death row for 2 1985 murders that occurred during 
separate robberies of fast-food restaurants in Birmingham. He was set free on 
April 3 after new ballistics tests contradicted the only evidence - an analysis 
of crime-scene bullets - used to convict him decades ago.

In his first days off death row, Hinton said he sometimes enjoys just driving, 
relishing the freedom to simply move about as he wants. He says he's not angry, 
crediting God for suppressing the hatred that otherwise could devour him 'like 
a form of cancer.'

'I have too much to live for to allow a bunch of cowards to take my joy. I 
refuse to give them my joy,' Hinton said.

'I'm at peace with myself. The thing is, are they at peace? They know what they 
did. They know they lied 30 years ago. I feel that every man that played a part 
in sending me to prison, every man or woman, whether the judges, prosecutors, 
ballistic experts, or witness, whoever - they will answer to God. So I'm going 
to enjoy my life the best I can,' Hinton said.

Attorney Bryan Stevenson, director of the Alabama-based Equal Justice 
Initiative has called it a case study in how poverty and racial bias led to a 
wrongful conviction.

Hinton was arrested for the 2 1985 murders after a survivor at a 3rd robbery 
identified Hinton in a photo lineup - even though he was clocked in working at 
a grocery store warehouse 15 miles away. There were no fingerprints or 
eyewitness testimony, but prosecutors said at the time that bullets found at 
the murder scenes matched a .38-caliber revolver that belonged to Hinton's 
mother.

His poorly funded defense hired a 1-eyed civil engineer with little ballistics 
training to rebut the state's evidence. The defense expert was obliterated on 
cross-examination as he admitted he had trouble operating the microscope.

Stevenson, who took up Hinton's case 16 years ago, said an independent analysis 
showed the bullets didn't come from the gun, and fought for years to get the 
state to take another look at the case.

A breakthrough only came when the U.S. Supreme Court ruled Hinton's defense was 
so deficient that it was unconstitutional. Prosecutors dropped plans for a 2nd 
trial when 3 state forensic experts couldn't determine if any of the bullets 
were fired through the revolver, or even from the same gun.

'They took half my life and it's like they didn't care. They were willing to 
kill an innocent man,' Hinton said.

'Thirty years ago, I had a judge that stood up proudly and sentenced me to 
death. I had a prosecutor who couldn't wait to get in front of a camera and say 
that they had took the worst killer off the streets of Birmingham. But come 
April 3, no judge was willing to say Mr. Hinton we apologize for the mistake 
that was done. No D.A. was there to say we apologize.'

During Hinton's 28 years on death row, dozens of inmates, men he came to view 
as family, were executed either by Alabama's 'Yellow Mama' electric chair or by 
lethal injection.

'The generator would kick in when they pulled the switch. The lights would dim 
on and off,' Hinton said. Alabama for years traditionally performed executions 
at midnight.

5 minutes after midnight, the inmates would start banging on the bars.

'We did that not knowing if the condemned man had a family or anybody back 
there in his support. We were just trying to let him know that we were still 
with him to the very end.'

He was arrested at age 29. He turns 59 in June. When Hinton went to death row, 
Ronald Reagan was president. The technology of 2015 is 'outrageous,' he said.

After being released last month, he got in a car equipped with a GPS navigation 
device that gave spoken directions.

'The lady said, "Turn left" I looked in the backseat and wanted to know where 
she was at,' Hinton said, marveling at the device.

After living decades mostly alone in a prison cell, he has a hard time with 
crowds. Friends took him to a shopping mall, but he had to leave almost 
immediately.

Even eating is a change. Death row inmates are given only plastic spoon to eat 
their meals. Friends took him to a Roadhouse steakhouse to eat, where he had to 
relearn how to use a knife to cut a steak.

'I just followed their lead watching everybody else cut their steak, because I 
didn't want to embarrass anyone.'

The day he was freed, one of the first things he did was to visit the grave of 
his mother. He sat down and wept.

Beulah Hinton had always believed in the innocence of 'her baby' as she called 
the youngest of her 10 children, but did not live to see him released from 
prison.

As a boy, his mother had told him not to fear the police, to never run from 
them or hide from them. That faith is gone, he said.

He has a plea to people who serve on juries, particularly capital murder cases. 
Listen. Question.

'Be careful. Have an open mind. Pray about their decision before they make it,' 
Hinton said. 'In my case, they knew that gun didn't match 30 years ago.'

Hinton said he survived death row with a combination of faith in God and sense 
of humor. 'I just didn't believe the God that I served would allow me to die 
for something I didn't do.' He also harnessed his imagination to travel the 
world from the confines of a tiny cell.

'Being able to control your mind is a beautiful thing. I went everywhere that 
my mind could take me Brazil, the Bahamas, Paris,' Hinton said.

'I didn't want to think about where I was. Being in a 5-by-7 every day for 365 
days a year is more than what the average man could stand,' Hinton said. 'You 
weren't built to be in a cage that long.'

(source: Daily Mail)








NEBRASKA:

Stand firm on death penalty repeal



The emphatic 32-15 vote in the Nebraska Legislature to repeal the death penalty 
attracted all sorts of attention. Those who took notice ran the gamut from 
columnist George Will to the Gawker.com website (motto: Today's gossip is 
tomorrow's news).

Now the pressure is on. 30 votes are needed to override the veto from Gov. Pete 
Ricketts. The governor urged constituents to "reach out" to senators during the 
Memorial Day weekend. Calls and emails are coming in on both sides of the 
issue.

The senators who voted to repeal the death penalty should stand firm. The 
reasons that compelled them to vote to end the death penalty are as valid now 
as they were on the final vote on Wednesday.

State senators took a variety of paths to arrive at the conclusion that the 
death penalty must go. Some, like Sen. Bob Krist of Omaha, based their vote on 
theological grounds. Krist said he is pro-life from "conception to natural 
death." Sen. Adam Morfeld of Lincoln said the state should not have "the power 
and authority to take a life."

Sen. Laura Ebke of Crete, who said her vote for repeal was based on both moral 
and philosophical grounds, capsulized the conservative argument for repeal: "If 
government shouldn't be trusted to manage our health care, which I think many 
of us in this room would agree, then why should it be trusted to carry out an 
irrevocable sentence of death?"

On his legislative website, Sen. Robert Hilkemann of Omaha provided a 
straightforward and candid account of how he arrived at his decision to vote 
for repeal.

"Over the years I have never thought much about the death penalty, except when 
it is debated at church or around the family table," Hilkemann wrote. "My stand 
has been that we should keep it for the most heinous of crimes or for killing 
law enforcement officers."

But when he came to the Capitol to begin serving in the Legislature this year, 
he was exposed to more evidence and confronted with new perspectives.

"The turning point in my decision began April 1, during a personal conversation 
in my office with Ray Krone. Ray had been falsely accused and convicted of 
murder in Arizona in the '90s and was given the death sentence," Hilkemann 
wrote. Fortunately DNA tests came into wider usage. "Ray was the 100th person 
exonerated by post-conviction DNA evidence, which indicated to me our judicial 
system doesn't always get it right," Hilkemann wrote.

The governor believes that most Nebraskans support the death penalty, and 
perhaps he is right. Poll results depend on how the question is asked.

However, most Nebraskans have never been responsible for state policy. They 
have never been required to think as deeply on the issue as Hilkemann and his 
colleagues.

Elected officials can and should do more. They can lead. They can explain to 
their constituents the many reasons why the death penalty should be repealed. 
Nebraska may the 1st "conservative" state to repeal the death penalty, but 
others will surely follow.

(source: Jouranl Star Editorial Board)

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

Death penalty foes see Nebraska vote as momentum-builder



With Nebraska on the brink of outlawing the death penalty, opponents of capital 
punishment hope this week's veto-override vote in the Legislature will build 
momentum for their cause in other Republican states.

Whether that will happen isn't clear, but Nebraska isn't the 1st right-leaning 
state to consider banning capital punishment this year.

A bill to abolish the death penalty in Montana came within one vote of passing 
in February in the Republican-led state House. In Kansas, a GOP state 
representative took the lead in introducing a repeal bill this year, and the 
state's Republican Liberty Caucus formally came out in opposition to capital 
punishment in 2014.

"This could start a domino effect, for sure," said Stacy Anderson, executive 
director of Nebraskans for Alternatives to the Death Penalty. "Many states are 
already looking at this. I joke with people who do the same kind of work in 
other states that we're in a race to see who can repeal it 1st."

Nebraska lawmakers voted 32-15 last week to abolish the death penalty, despite 
promises that Gov. Pete Ricketts will veto the bill. Death penalty opponents 
need at least 30 votes for a veto override, but Ricketts is appealing to the 
public and talking privately with lawmakers in an effort to flip 3 or more 
votes.

Sen. Ernie Chambers of Omaha said his repeal bill wouldn't have passed this 
year without conservative support. Nebraska's longest-serving lawmaker has 
fought for decades to end the death penalty; the bill that advanced last week 
was his 38th try, according to the Legislature's Research Office.

"Nebraska doing it may provide cover to other legislatures to say, 'If Nebraska 
can do this, we can also,'" Chambers said.

National groups are watching Nebraska closely and expect a "ripple effect" if 
the state votes to abolish, said Shari Silberstein, executive director of the 
group Equal Justice USA. Law-and-order conservatives have traditionally stood 
among the strongest supporters of the ultimate punishment.

"A lot of states have stopped making this a partisan issue, and started to make 
it a conscience issue," she said. "The party's not going to tell you how to 
vote."

Repealing the death penalty may be easier in Nebraska than states where capital 
punishment is more ingrained in the culture, said Eric Berger, a University of 
Nebraska associate law professor and death penalty expert.

Nebraska hasn't executed an inmate since 1997, when the electric chair was 
used, and the state has never imposed the punishment with the current required 
lethal injection protocol. 11 men are now on death row, including 1 who has 
been there for 35 years.

"I don't see a state like Texas repealing capital punishment anytime soon, but 
there certainly is a movement that's gaining momentum," Berger said. "The 
anti-death penalty arguments are beginning to resonate with small-government 
conservatives. It doesn't guarantee there will be continued momentum, but I do 
think it's symptomatic of some changed thinking on the right."

Nebraska senators base their death penalty opposition on different factors, 
including religious beliefs, an argument that it wastes taxpayer money and the 
idea that the government wasn???t competent enough to manage it. The repeal 
effort has won support from prominent religious groups, including the Nebraska 
Catholic Conference.

Ricketts argued Friday that lawmakers are out of touch with their constituents, 
the majority of whom he argues continue to support capital punishment. In a 
state with a 1-house Legislature, he said, the public should serve its role as 
the "2nd house" by contacting their senator.

"The people I talk to overwhelmingly support the death penalty," Ricketts said.

(source: Associated Press)

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

Senator defends death penalty vote



I knew I was going to write a column this week. I also knew I could write about 
any number of issues and bills that we are considering during our last few days 
this session. I knew as well there was an overriding issue that had to be 
talked about. I will admit, I did vote to repeal the death penalty.

LB268 was approved by a strong majority of the Legislature this past week. On 
any number of issues, when I vote with a large majority of the senators I serve 
with, I feel the right decision was made. Many of you in District 23 have let 
me know you don't feel I made the right decision with my vote on LB268. In 
fact, many of you have been less than complimentary about me and have expressed 
this in a number of ways to my staff as well. First, if you have a complaint 
express it please but check your anger at the door. Many have called and 
expressed outrage to a decision that has changed the way we handle some of the 
worst of the worst.

I can go through a number of the arguments. We don't use the death penalty so 
why have it? It costs too much. The drugs are not available or subject to 
rejection. Victims' families don't want this because it simply drags them 
through an emotional roller coaster over and over year after year.

Passage of this bill has been described as historic. The 1st conservative state 
in the nation to repeal the death penalty. I don't feel my vote can be 
considered historic. I don't feel I have abandoned my conservative principles 
by my vote either. On the contrary, I see a program not working. One that has 
been costing the state millions of dollars with no executions and none really 
coming. Death row inmates spending decades on death row. Really, nothing will 
change much with the passage of this bill. When I see an expensive program that 
is not working, I think it should be cut out. Death row inmates will be 
relegated to life without parole. Expensive appeals will end. Inconsistent 
application of this sentence will end. The possibility of wrongfully putting 
someone to death will end.

Finally, I cannot morally reconcile the notion that a vote of mine can result 
in the eventual death of another person. I campaigned on a pro-life agenda. I 
know several faiths wrestle with this concept in many areas not only the death 
penalty. I didn't vote this way to please any other senator. I didn't "trade" a 
vote for another bill as has been alleged. I have been told by many of you that 
I did the right thing with my vote and I appreciate your confidence.

With the kind allowances of your local newspapers that carry this column, I 
plan on 2 more "Legislative Word" offerings this year. Next week I will try to 
wrap up this year in the Agriculture Committee and the following week I will 
give you some of my thoughts overall.

(source: Opinion, Sen. Jerry Johnson; Schuyler Sun)








NEVADA:

Money for NV death chamber could be wasted



Assembly and Senate committees in the Nevada Legislature this week approved 
$858,000 to be spent on a new execution chamber in Ely.

Regardless of one's position on the death penalty, the full Legislature should 
reject it.

To build the execution chamber now almost guarantees money will be wasted. The 
simple reason is that there is no need for one now.

The current death chamber is at Nevada State Prison in Carson City. The prison 
itself has been decommissioned and will become a museum.

While it would be tacky to carry out executions at the same place as a tourist 
attraction, the more pressing issue behind building a new death chamber is that 
the current one is not ADA-compliant.

That means it violates the Americans With Disabilities Act. A judge would 
likely block an execution there because a person with disabilities who wanted 
to get upstairs to the chamber's witness room would face no elevator and 
inadequate handrails.

Corrections Department Director Greg Cox testified that if the status of a 
Nevada death row inmate changes, the state would be required to act within 60 
or 90 days.

This concern would carry more weight if Nevada's death chamber had been used 
even once in the past 9 years. (The last execution was of Daryl Mack for the 
rape and murder of Betty Jane May of Reno. Daryl Mack should not to be confused 
with Darren Mack, who murdered his wife and tried to kill family court judge 
Chuck Weller with a sniper rifle in Reno, coincidentally 6 weeks after Daryl 
Mack's execution. Darren Mack got 20 years to life.)

Assemblyman Randy Kirner, R-Reno, says no executions are planned in the coming 
2 years.

Think about that again: The current chamber hasn't been used in almost a decade 
and is not needed for at least two years to come and probably longer. If this 
were a proposed addition to a home, no one would recommend building it. Too 
many variables might change between now and when it will see its first use.

To start with, the chamber would be built to accommodate Nevada's current 
execution method: lethal injection. This might not be the method in a few 
years.

Companies that manufacture the drugs used in lethal injection have increasingly 
refused to sell them for use in executions, causing massive shortages 
nationwide. States have tried their own drug mixes, leading to botched 
executions and lawsuits in some cases.

In March, the American Pharmacists Association announced it would discourage 
members from participating in executions because doing so goes against their 
role as health care providers.

States are increasingly looking at other methods. For example, Utah just 
brought back the firing squad.

All of this discussion assumes Nevada will continue executions. That is not a 
certainty.

Since 2007, 6 states have abolished it. Just this week, the 
Republican-dominated Nebraska legislature voted to end it there. The pendulum 
is swinging toward abolition of the death penalty because of justice as well as 
financial concerns.

The Death Penalty Information Center reports that since the death penalty was 
reinstated in the U.S. in 1976, 144 innocent prisoners have been exonerated. 
Last month, Anthony Ray Hinton was freed from an Alabama prison after nearly 30 
years on death row when the evidence used to convict him was proven false.

Cost is also an issue. In December, a Nevada state audit found that murder 
cases where the prosecutor seeks the death penalty cost much more than cases 
where life without parole is sought. The 18-month investigation at the behest 
of the 2013 Legislature found death penalty cases cost taxpayers $1.03 million 
to $1.31 million on average while murder cases where execution is not sought 
cost $775,000 on average.

Beyond all this, Ely might not be the best place for a Nevada execution 
chamber, yet it seems to be the only place being considered.

On the plus side, it would be in the same facility as all of Nevada's 
approximately 80 death row inmates: Ely State Prison.

But this is a remote location. The distance makes it difficult for witnesses to 
attend, and thus makes the process less transparent. Given the problems with 
recent executions across the country, the public needs to know that fatal 
actions taken in its name are being done properly.

The case for funding the chamber now is nonexistent:

--There are no executions on the horizon.

--The requirements of a death chamber very well may change before the next 
execution, possibly requiring different facilities or at least remodeling.

--It is possible Nevada could abolish the death penalty because the public 
costs for seeking life-without-parole sentences are much cheaper.

--And a strong argument for the Ely location has not been made.

Nevada's legislators can surely find a better use for $858,000.

(source: Editorial Board, Reno Gazette-Journal)








CALIFORNIA:

Father and son cop pleas, will testify in North Bay triple slaying



A father and son pleaded no contest to numerous felonies and will testify 
against a 3rd man accused in a triple killing near Forestville tied to a 
marijuana deal that went bad, prosecutors said.

The Sonoma County district attorney???s office said Friday that Francis Dwyer, 
67, and his son, Odin Leonard Dwyer, 40, will take the stand at the September 
trial of Mark Cappello, 48.

Capello, prosecutors said, was seeking money when he shot and killed Raleigh 
Butler, 26, of Sebastopol; Richard Lewin, 46, of Huntington, N.Y.; and Todd 
Klarkowski, 42, of Boulder, Colo., on Feb. 5, 2013.

Cappello has been charged with 3 counts of murder as well as the special 
circumstances of lying in wait, killing for financial gain, killing in the 
course of a residential burglary and committing multiple murders.

Francis Dwyer will be sentenced to 8 years in state prison after pleading no 
contest to being an accessory to murder and 4 marijuana-related charges.

His son will receive 20 years and four months in prison after pleading no 
contest to 3 counts each of involuntary manslaughter and being an accessory to 
murder. He was also convicted of accessory to robbery, conspiracy to commit 
residential burglary and several marijuana-related charges.

District Attorney Jill Ravitch is seeking the death penalty against Cappello. A 
jury will decide whether the defendant, if convicted, will die by lethal 
injection or instead be sent to prison for the rest of his life with no chance 
of parole.

Ravitch said this is the 1st time Sonoma County prosecutors have sought the 
death penalty since the 1995 shotgun slaying of Deputy Frank Trejo. Robert 
Scully Jr. was sentenced to death 2 years later and is still on death row.

The Forestville victims intended to buy a large quantity of marijuana but were 
shot dead instead in a home rented by Butler's mother, authorities said.

Cappello of Central City, Colo., was arrested in Alabama 9 days after the slain 
men were found.

The father and son were seen traveling with Cappello through Wyoming, Nevada 
and Napa County in the days before the victims were found, authorities said.

(source: sfgate.com)








WASHINGTON:

Death penalty on trial after McEnroe verdict shocker ---- If the Carnation 
massacre doesn't warrant the death penalty, does anything? A jury's verdict 
spared the life of a killer, but it may have helped kill the death penalty 
around here.



King County is running 3 death-penalty trials this year. At one time the cases 
were considered slam-dunk examples of why we still have a death penalty.

The cases are the worst of the worst, involving mass murder and the shooting of 
a police officer. Plus there's little doubt the defendants committed the 
killings.

But now it seems like the death penalty is also on trial.

The decision by a jury last week to spare the life of Carnation mass-killer 
Joseph McEnroe was a shocker. This is a guy who shot and killed multiple people 
at close range, including 2 little kids. Of the 6 murders that Christmas Eve in 
2007, he personally pulled the trigger in 5.

If executing a 3-year-old and a 5-year-old doesn't warrant death, does 
anything?

As the excellent post-trial reporting by The Seattle Times' Jennifer Sullivan 
is showing, the same jurors who swiftly concluded he was guilty were divided 
when it came to his fate. In the end they split 8 to 4 and opted to give him 
life in prison without possibility of parole.

What may make this case a bellwether is that some of the jurors were blunt that 
they just don't really believe in the death penalty. Too many doubts - not just 
about the case but about the law. It's as if they ended up doing a form of jury 
nullification.

Nullification is when jurors let someone off because they think the underlying 
law is unjust. It's controversial, because juries are instructed to follow the 
law whether they agree with it or not.

But it's also a fact of life of the court system: Juries can and do weigh 
whether the law itself is right.

We live in a state where the governor has declared publicly that the 
death-penalty law is wrong. Gov Jay Inslee said it's so flawed that he won't 
allow any executions while he's in office. So it's no wonder some jurors might 
be having doubts as well.

It's impossible to know whether what just happened was an isolated occurrence 
or if "death-penalty doubt" will spread. The jury hearing the case of 
Christopher Monfort, accused of killing Seattle police officer Timothy Brenton, 
is expected to begin deliberating in a week or 2. If they find him guilty of 
aggravated 1st-degree murder, the death-penalty determination will go into the 
summer.

But the decision to spare McEnroe now creates a major conundrum for the third 
planned trial. The other alleged Carnation killer, Michele Anderson, has been 
charged with the same 6 murders. Her death-penalty trial is supposed to start 
in September.

If she's found guilty of the same murders, the justice system is going to have 
a hard time rationalizing putting her to death when it spared the one who 
killed 5 of the 6 victims.

If anything, that would seem to demonstrate the fickleness of it all.

It took 7 years and more than $10 million to get the Carnation trials started, 
much of that due to wrangling over the death penalty. If there's any chance of 
ending this sooner by locking up Michele Anderson forever instead of continuing 
to pursue a death sentence, King County should take it.

The other remarkable thing about the McEnroe verdict was the reaction of the 
poor surviving members of this family.

Pam Mantle, who lost her daughter and 2 grandchildren in the slayings, said she 
and her husband were surprisingly happy with the outcome because it means, "We 
don't ever have to deal with it again. It will be probably better for everybody 
involved to be able to just kind of put the McEnroe part of this case away."

That's a powerful statement. Winning on the death penalty doesn't bring 
closure. It brings rounds of appeals and hearings, lasting years, all focused 
on the killer. So in the end why not lock him up forever, with no possibility 
of getting out, and try to move on.

It's understandable King County prosecutors tried for death. But we may look 
back at this case as a tipping point when we decided not to anymore.

(source: Seattle Times)








USA:

Bill Kristol slams death penalty repeal: Executions are an 'important symbol' 
of American justice



Weekly Standard editor Bill Kristol on Sunday slammed states that had repealed 
the death penalty because he said that executions were an "important symbol" of 
justice.

Last week, Republican Nebraska lawmakers passed legislation that would repeal 
the state's death penalty on the grounds that it was an example of a wasteful 
government program. The Republican governor vowed to veto the bill, but 
lawmakers suggested that they could have enough votes to overturn a veto.

During a panel discussion on ABC News, conservative CNN pundit S.E. Cupp 
asserted that the tide had turned, and that even many religious conservatives 
now opposed the death penalty.

"I don't find it to be moral, I don't find it to be just," she said. "The 
wrongful convictions that we hear about all the time. It is costly, it is 
bankrupted entire counties. And so for me, I've been trying to convince fellow 
conservatives to have a change of heart on this issue."

But Kristol said that he was "convinced" that executions were both "just" and 
an "important symbol."

"I'm a defender of the death penalty," he explained. "I think it is both just 
and an important symbol for really heinous crimes and how serious we take the 
state's obligations to preserve life actually."

Kristol noted that he "respected" conservatives who took principled pro-life 
stands against the death penalty. But the conservative columnist seemed more 
interested in using the topic to attack Democratic presidential candidate 
Hillary Clinton than engaging in a substantive debate.

"I'm curious what Hillary Clinton - if we can get back to her - what Hillary 
Clinton's position is," he quipped. "Her husband executed people as governor of 
Arkansas. And I'm sure if she ever appears before the press, every Republican 
candidate, of course, will get asked on this."

(source: rawstory.com)

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

Accused killer Fell pushes misconduct claim



Accused killer Donald Fell continues to allege that prosecutors acted 
improperly during the death-penalty trial in which he was convicted in 2005.

And in an attempt to dismiss his charges - which include kidnapping with death 
resulting - before his new death-penalty trial, he asked the U.S. District 
Court this week for a hearing on unresolved allegations of misconduct by 
prosecutors.

Judge William K. Sessions III granted Fell a new trial in 2014, on the grounds 
of juror misconduct. But Fell's remaining assertions of prosecutorial 
misconduct remained unresolved.

"Judge Sessions recognized that claims remained pending after he granted Mr. 
Fell a new trial and his order reveals that he intended to proceed with this 
litigation," Fell's attorneys wrote in a memorandum in support of Fell's 
motion.

"The court must provide him with adequate remedies for the constitutional 
violations which potentially include dismissal of the charges and/or the death 
notice," the defense wrote.

Fell was sentenced to death in 2006 for the armed kidnapping and killing of 
Terry King, 53, of North Clarendon on Nov. 27, 2000.

Prosecutors said Fell and an accomplice, Robert Lee, carjacked King at gunpoint 
in the Rutland Price Chopper parking lot as she arrived for her shift at the 
supermarket. In a detailed confession, Fell admitted to killing her, according 
to court documents.

Fell claims the government's arguments - during his jury trial and the penalty 
phase - were improper, inflammatory and misstated. He also alleged prosecutors 
elicited false testimony from witnesses and withheld critical documents from 
the defense during the trial.

At an April 10 hearing in Burlington federal court, Fell's new California-based 
defense team questioned these unresolved claims.

During the April hearing, Assistant U.S. Attorney Julie Mosely, of the Capital 
Case Section at the U.S. Department of Justice, said it was time to move 
forward.

"There's nothing to be gained from litigating old issues, other than drag the 
whole process out," she said. "The family needs and deserves resolution to this 
case."

But Fell's defense has asked for a hearing on the misconduct allegations.

"The double jeopardy clause of the Fifth Amendment, along with other 
constitutional guarantees, can bar a retrial when intentional government 
misconduct tainted the initial trial," the lawyers wrote. "At least 5 specific 
and distinct claims of prosecutorial misconduct were found by the court to be 
supported by sufficient fact to proceed to litigation."

Among Fell's allegations:

- When the prosecution compared Fell violent stomping a New York man to 
violently stomping King to death, Fell said the prosecution intentionally 
withheld the information that the New York man allegedly tried to rape Fell's 
sister. Fell also claimed the New York man was not in a coma and the 
prosecution failed to reveal this to the jury.

- When the prosecution showed a video of Fell being verbally aggressive and 
spitting at a correctional officer, they intentionally withheld the information 
that the guard had a history of violence with inmates.

- The prosecution failed to reveal evidence that Fell's accomplice, Lee, was 
the violent aggressor - based on his prison record and a witness account that 
cast doubt on which one wanted to kill King.

According to Fell's defense, there is adequate law and precedent to grant Fell 
a hearing until all claims are decided.

The court has not responded to this motion.

In other Fell motions this week, the prosecution fought Fell's request to turn 
over all mental health evaluations from the 1st trial.

"... Fell now urges the court to order the government to return all that 
evidence to him and preclude the government from using it," the prosecution 
responded to Fell's motion in May.

"His request, to resort to the cliche, seeks to 'unring the bell,' or mixing 
metaphors, to 'put the genie back in the bottle,'" the response said.

"... In any event, Fell's request is superfluous."

The court has not ruled on this motion.

Fell is currently housed at the Metropolitan Detention Center in Brooklyn, N.Y. 
His next hearing is scheduled for June 5 in Burlington federal court.

(source: Rutland Herald)