Donald Fell case to be retried after 15 years

For the first time in almost a decade, Lori Hibbard will once again be in the same room as her mother's accused killer, Donald Fell.

The last time the two had been in the same room had been at at a court hearing in 2006 when Fell was first sentenced to death.

The death verdict and sentence have since been overturned, and the case reset with new lawyers and a new judge.

Hibbard of Rutland said she is "sickened" by the idea of seeing him again.

"I'm going to be sleepless that night," Hibbard told the Burlington Free Press . "I hate it when he's there."

The almost 15-year-old death-penalty case is heading toward another trial after the 2005 murder conviction for Fell, 34, was overturned last July due to juror misconduct. Fell had been on death row following his sentencing to death in 2006 in the slaying of Hibbard's mother, Terri King, 53.

A pretrial hearing is scheduled for April 10 at U.S. District Court in Burlington, to which Fell will be transported.

Fell is accused of kidnapping the North Clarendon grandmother as she arrived to work Rutland supermarket in November 2000 and later beating her to death in New York while she prayed for her life, according to court papers.

The entire case has essentially been reset after Judge William K. Sessions III ordered that Fell would be entitled to a new trial. If convicted, Fell again faces death.

There is no death penalty in Vermont, but federal cases can carry a death penalty. The case has been tried in federal court in part because King had been taken across state lines, into New York, before she was murdered.

The case had been the first in about 50 years in which capital punishment was imposed in Vermont.

Though Hibbard said she wishes the case was over, she said she and her family will "do whatever it takes to get Donald back on death row."

"It should have been over a long time ago," Hibbard said.

15 years and counting

Since King's slaying in 2000, Hibbard said she and her family have lacked closure. King's family members continue to ask why the slaying happened in the first place, she said.

On Nov. 27, 2000, King had been arriving for her 4 a.m. shift at the Price Chopper when Fell and an accomplice, Robert Lee, pointed a shotgun at her and forced her into the back seat of her own car.

Fell and Lee had stabbed to death Fell's mother, Debra, and her friend Charles Conway earlier that morning, court papers stated. The killers later would tell police they needed a getaway car.

According to court papers, Fell told police that he and Lee killed King because she would have been able to identify them after the carjacking. Otherwise, the two men had never met King before that night, Hibbard said.

Fell's accomplice Robert Lee also was charged originally, but he killed himself in jail before his case was tried. No state charges connected to the killings of Debra Fell or Charles Conway were ever filed.

Federal prosecutors are again bringing charges of kidnapping with death resulting, carjacking with death resulting, using a firearm in a violent crime and transporting a firearm while a fugitive.

Fifteen years later, Hibbard said she feels as if the weight of her mother's death in the case has diminished to "words on paper," though the death still affects her family every day. Hibbard said the 15-year span of the case has led to pain and confusion for her family as Fell's fate continues to be argued.

"It just seems like a game to everybody else," Hibbard said.

Hibbard said her own children are doubly affected now as they begin to have children. If King were still alive two months ago, she would seen the birth of a great-grandchild.

King's husband has also struggled to come to terms with his wife's death, Hibbard said. Hibbard hopes her father, who is now in his 70's, will be alive to see the conclusion of the case.

'Juror misconduct'

As she has said in the past, Hibbard believes that the allegations of juror misconduct were not bad enough to reset the entire case. Instead, she and her family blame Judge Sessions for finding an excuse to call for a new trial because the judge, they say, was philosophically opposed to the death penalty.

"I don't even think he did anything wrong," Hibbard said of the juror. "He didn't see where they got murdered. That was in New York ... That didn't make any sense whatsoever."

Sessions had ruled in 2002 that part of the federal death penalty was unconstitutional. His decision was overruled two years later by the 2nd U.S. Circuit Court of Appeals two years later.

Lawyers for Fell who joined the case in 2009 unearthed evidence of misconduct by a juror who they said secretly traveled to Rutland during the first trial to look at the crime scenes. In his decision to have the case retried, Sessions wrote that Juror 143 told a third party about what he had seen and shared his observations with the jury panel.

Juror 143 failed to tell the court at any time what he had done, and then lied under oath in August 2013 when questioned about his conduct during a court hearing before Sessions, the judge said in his ruling.

Trial rules strictly prohibit jurors from considering any evidence other than what is presented to them in court.

The juror, later identified by the Burlington Free Press as John Lepore, a state Transportation Agency environmental biologist, did not immediately return requests for comment on Sunday. Lepore, a Northfield resident, has not gotten in touch with the Burlington Free Press when contacted in the past about the allegations.

Hibbard said that she believes the case will conclude with the same result, and that Fell will receive the death penalty again.

"The facts are the facts," Hibbard said. "What he did was terrible. ... No drugs were involved. What he did was pure evil."

She later added, "Once he's gone off this earth, that's when I'll find peace."

Case reset

Along with a second chance, Fell has also been given three new lawyers. Judge Geoffrey Crawford has also been assigned to the case, replacing Judge Sessions.

Two of the three new lawyers, Michael Burt and Tomothy Philipsborn, have prior experience with federal death penalty cases and have worked together in the past, Philipsborn said. The third lawyer, Kerry DeWolfe of Corinth will serve as local counsel for the two California-based attorneys.

According to Burt's resume, he has served as federal death penalty resource cousel since 2001 and conducts his own law practice in San Francisco, Calif.

Philipsborn also has his own law practice in San Francisco, Calif., and he serves as a faculty member in the Death Penalty College of Santa Clara Law School in California, according to his online bio. He said he has been part of more than 30 death penalty cases.

Philipsborn served as counsel on the first death penalty trial in Hawaii since it became a state, he said. His client, Naeem Williams, was facing the federal death penalty, but instead was sentenced to life in prison without the possibility for release.

Fell is being housed at the Brooklyn Metropolitan Detention Center in New York.

All of Fell's new lawyers last week declined to comment on case.

Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at www.twitter.com/LizMurraySMC.