Death Penalty: Two Essays


Death Penalty

Two Essays

Marc Estrin

Andrew Bartnick


Chapter 1

Two essays concerning the 2005 sentencing to death of Donald Fell in Burlington, Vermont


In 2005, Donald Fell was tried and convicted of car-jacking and kidnapping resulting in death for causing the death of Terry King in November 2000. He was tried in United States District Court in the District of Vermont, where the maximum punishment for these crimes was the death penalty and the minimum punishment was life in prison with no possibility of parole. He was sentenced in 2006.

Federal prosecution began at the onset of the case. Local Federal Prosecutors had agreed on an Life Without Parole plea deal, but were overruled by Washington. Because Mrs. King had been kidnapped in Vermont and taken across state lines to New York, then-Attorney General John Ashcroft demanded that Fell’s actions be classified as a federal crime, and that he be subject to the death penalty.

Vermont had not executed anyone in more than 50 years, and in 1965, capital punishment had been legally abolished. Thus, the demand that Vermonters now consider sentencing a man to death presented a challenge to the culture and politics of the state, and focused a spotlight on the question of capital punishment.

After spending 12 years on federal death row, due to a gross incident of juror misconduct, Donald Fell’s conviction was thrown out, and he is now being retried, with the possibility of a new sentence.


The Death Penalty in a Culture of Victimization and Kitsch


Marc Estrin


There are two entrances to the Federal Building in Burlington. One is near the corner of a busy street; it is wrapped around that corner -- for maximum visibility -- that we held our weekly vigils against bringing the death penalty to Vermont.

Yet the press massed itself daily at the other entrance, a smaller, mid-block one, half-hidden by luxuriant trees. Why? Because it was there that “the family” emerged for lunch or dinner. It was there they could be exhaustively interviewed and photographed for their every response to the courtroom events.

In the room itself, one whole side of the public seating was marked off as “reserved”. For whom, the sign was tacit. But that was where the family and their friends sat, sparsely, compared to the larger public packed into an equal space on the other side. The empty seats around them were treated as sacred space, not for outsiders. It was a rare courtroom visitor who was clueless enough not to take the hint.

The family. The word brings up Elian Gonzalez and Terri Schiavo. Even the defense counsel in his summation, chose to praise the family, that very family whose insistance before the trial sought death for their client, and whose performance before the jury and in the media did much to condemn him. That family was extolled as a prime example of what their client never had -- a loving clan that could come together to support one another in hard times, and celebrate in good ones. A model family which had overcome its many hardships. If only Donny had had one...

In a country where more than half of marriages end in divorce, where single-parent households are now in the majority, “Family” has taken on iconic, white-hat status. Elections are won on “family values”. All our holidays feature “family fun”. You want to be a bad guy? Target the family. Worse, turn them into victims.

The family played their media hand with skill. I am not suggesting that their pain over the murder was not authentic. I don’t know what many things they were really feeling, or who was advising them on their strategies. Perhaps they were even played by the media more than they played it. But the overall effect was such as to achieve their goal -- to get a death verdict from a Vermont jury for the first time in half a century. Perhaps they felt justice was served. Perhaps it was merely revenge. But what they said they wanted was “closure”.


We found much support as we stood Wednesdays at noon against the death penalty. Yet there were still many passers-by who felt otherwise. “An eye for an eye,” they would yell from their cars, or “They kill us—we kill them!”

While the rest of the western world has long put capital punishment behind it, the United States perversely bucks the trend. For years, Amnesty International has indicted the US for its killing of juveniles, killing the mentally ill, for the wide regional disparities in executions, for the arbitrariness of those selected for execution, the obvious role of race in those selections, the systematic exclusion of opponents of the death penalty from juries, the use of peremptory challenges to exclude blacks from sitting on capital trial juries, especially if the defendant is black, for the assignment of inexperienced, often incompetent counsel to indigent offenders, for a whole array of procedural bars to appeal, for the increasing unwillingness of federal courts to consider new constitutional questions, and for the very narrow view of the role of clemency taken by governors and pardon boards. All these, says AI, puts the US outside the norms of international behavior.

No technical or bureaucratic problems were present in the Fell trial. Fell’s guilt was admitted, and his legal representation was competent and strong. The judge was attentive, and scrupulously fair. The drama was focussed on one question only -- would the jury unanimously ask for death? The answer was yes.


Whence the still strong American embrace of the death penalty? I suggest it arises from two spurious needs, both of which have been normalized by a bizarre combination of collateral damage from our war-making and politically-correct “sensitivity”. The first is obvious; the second less-so.

One of the hallmarks of our contemporary culture is its curious competition for victim status. In addition, since 9/11, our administration has actively flown the banner of the victimized, crucified, vengeful Christ. Now that we as a nation have suffered so, we have a right to judge and punish. The city on a hill. And our punishment is far from unholy: we kill in order to redeem.

As we continue to victimize others around the globe, it is most convenient to proclaim our American selves as victims. And national claims trickle down to groups and individuals. Whites claim victimization by affirmative action, males by feminism, Republicans by “the liberal media”, the rich by “big government” – and so forth, a whole convenient upsidedownism whereby victimization is seen not only as a right, but as a claim on resources. The competition is fierce.

Think for a moment about the demands of the Victim’s Rights Movement.

First of all, it is now unquestioned that murder victims are more than those killed, but are now legally seen as all friends and family affected by the crime, expanding the test of victimhood to the suffering of those left behind, whose emotional performances seem so persuasive to juries. A new spotlight for “the family”.

For the most part these people insist on vengeance as the only possible “closure” for their distress, a word that has been recently taught them by the political culture and its media—as if the effects of a murder are ever “closed”. Protecting the community via life without parole will simply not serve. Though it would achieve immediate closure of the case -- no further appeals, no further media attention to open old wounds -- still “real” closure concerning a murdered loved one is sold to us as requiring the death of the murderer. That psychiatry does not support such dynamics (see David Brizer’s essay, p xxx) is neither here nor there. Life imprisonment just isn’t satisfying.


Concerning the jurisprudence of sentencing , what the Victims’ Rights Movement has done is to substitute private for public justice, normalizing a sense of entitlement to the death penalty. Only a satisfying personal experience will do, and this now becomes the only adequate gesture for the rest of the community. The goal of the Victims’ Rights Movement is to repersonalize criminal justice so that the public -- and potential juries -- must declare an alliance with either the victim or the offender. Criminal sentencing thus becomes a test of loyalty to one’s community – a dangerous new path which predisposes toward the punishing needs of the emotionally involved. Rehabilitative strategies are overlooked, rejected as not sufficiently reparative to the new class of victims. Capital punishment becomes the ultimate assertion of righteous indignation, and the highest form of public victim-recognition.

No less a legal figure than former Attorney General Janet Reno has raised victim status to absurd heights:

“I draw most of my strength from victims,” she said, “for they represent America to me: people who will not be put down, people who will not be defeated, people who will rise again and stand again for what is right. You are my heroes and heroines. You are but little lower than the angels.”

Is victimhood, then, not a goal worth striving for?

The elevation of extended victims to sub-angelic status has two major consequences. First of all it normalizes and legitimates revenge in place of retribution, opening society to suffer an unending chain of reciprocal act of vengeance. We see this result playing out overtly in the Middle East, and covertly in the consciousness of people of color in this country, and around the world. By creating victims, we become the new victims, and victims are beatified.

And in this beatification, legitimate questions of restorative justice are passed over:

-- Just what are the real needs of those who have been harmed? What, on deeper questioning, is really important to them? On surveys and in interviews, victims have most often indicated that acknowledgement by the perpetrator of the damage he or she has done is crucial, and would go a long way to easing them. Quite often questions need answering which would otherwise gnaw: why?, how?, what were the details of the death? Imaginations haunt; facts set to rest.

-- And what about the defendent’s needs? Restorative justice belongs to all parties, before any situation can be in some measure “restored”. Again, as surveyed, perpetrators most often need to acknowledge what has happened, and in some way make amends. They don’t know how to do that, and the system does not help them. We are opoen to helping those soldiers psychologically wounded from killing Iraqi innocents, but not a civilian who has killed one of our own.

Aiding both victim and perpetrator would restore as best it could. Further killing restores very little.


A further social dimension of embracing the vengeful victim plays out in the political sphere: revenge killing by the state becomes part of a strategy of governance that makes us fearful and dependent on the illusion of state protection, that divides rather than unites, that promises simple solutions to complex problems. The number of men and women condemned to die grows each year, and we are treated to the spectacle of people running for public office on the basis of how many they are prepared to kill. Tough on crime, it’s called.

Caught up in the contemporary cultural preoccupation with identifying and paying homage to “real” victims, the idea that criminals can be victims too all but disappears, and deeper sociological, political and cultural issues are ignored as the white hats simply execute the black ones. Any mature engagement in responding to society’s most severe social problems is shouted down by victims’ claims for lethal “closure”. Constitutional guarantees of equal treatment under the law are overlooked. Our fragile democracy increasingly calls for strong symbols of public sovereignty, like expanding jails and capital punishment. The desire for victim status, and a fearful aversion to non-government violence lead to a apprehensive attitude toward others. Increasing fear and frustration mark the current American condition.

The focus on victims functions as a strategy of political legitimation. The centrality of crime to governing, especially in a democratic state, requires citizens who imagine themselves to be victims, potential victims or those responsible for the care victims. As criminals are demonized, many ordinary citizens are enlisted as authorizing agents and appreciative, applauding audience for America’s own brand of lethal violence. To be for capital punishment is to be a defender of traditional morality against permissivism and of the rights of the innocent over the rights of the guilty. Down with protesters. Up with the fall from grace, with no prospect for redemption. In the land of the free and the home of the brave, we are all victims.


And can the land of the free ever evolve to crawl out of such embracing, larger, muck? Let’s look at the muck to determine its adhesiveness.

There is a concept in the Russian language known as poshlust. Speech or attitudes or states of soul that are poshlust -y embrace values that are almost, but not quite, kitsch, containing some level of authentic thought or emotion, but nevertheless, more -- or less -- subtly -- trumped-up, false or phony. A quintessential example of poshlust appeal is contained in the defense summation to the jury I described at the opening of this chapter. For diagnostic purposes, this allusion is worth quoting in full:

We see such devotion and love in [the victim’s] family, that [it] is overwhelming. They have been here every day in support of Terry, because that’s all they have left. That’s --that’s what they, that’s where they have committed as a family and have come together. And, you know, and that doesn’t, that never even came close, close to existing to what the childhood that Donnie had. And isn’t it important? How -- and that’s what -- that’s what this mitigation is -- our mitigation case is all about.

Don’t underestimate the power, the significance of, of a father figure, someone to care, someone to nurture, someone to provide. Don’t underestimate the power and significance of a mother’s love for her children. Look, look at what it’s done, what it’s done for the King family. They will never -- and it was poignant when Michael -- the grandson’s letter was read, and he said -- and he compared it to 9/11, and it definitely -- their family will never be the same, and America will never be the same. But America is not destroyed, and when you see their faces and heard their testimony about their love for Mrs. King, their family’s not destroyed. It can’t be because they have too much of those protective, nurturing factors that exist, that are what we all -- that makes us who we are.


Surely , overwhelming love, devotion and commitment are worth rewarding. And yes, nurturing fathers are rare enough and nice. The comparison of a death in the family to the world-shaking 9/11 may have its metaphorical value. And while the assertion that “America is not destroyed” may be somewhat nearsighted, still the co-appeal of both prosecution and defense to the jury’s patriotism (if for opposite purposes) is probably a universally-endorsed tactic of the times. The summary, however, bodes ill. For it seems there cannot be “too much of those protective, nurturing factors...that are what we all -- that make(s) us what we are.”

The Oprah-appeal of this language, this thinking; the culture that feeds on it, that somehow seems to need and support it; the implied be-all, end-all prioritization of untutored emotion which we see amply demonstrated in every facet of contemporary American culture -- this is not a likely milieu to transcend the kind of selfish emotionalism with which victims demand harsh penalties “for closure”. That a defense lawyer in a capital case would -- buoyed along by these normative phrases, and counting on the jury’s receptivity to them -- would lionize the very family asking for his client’s death is a self-defeating notion, lethal, as it turned out, to the defendent. What was the defense inhaling? Only air polluted by ubiquitous poshlust could create such confusion.

Not once in my hearing were the non-poshlust-y dimensions seriously presented to the jury as a challenge:

-- that, if they disapproved of murder, should they really be willing to cooly, and premeditatively, murder someone?

-- that there is no scientific psychological evidence for “closure” after demanding death. Indeed, that families and jury members often suffer after doing so.

-- that the US stands alone among western nations in exacting the death penalty, and that they must question the reasons for such exceptionalism.

-- that there were likely Rovean political reasons for retracting the government’s previously agreed upon plea bargain -- and did they want to cooperate with this?

Instead, the defense strategy focussed entirely on the poshlust-y dimensions of Fell’s horrible childhood. Why? Because poshlust is the reigning and language and currency of the land, the only dimension one can assume operative in a juror? Or in a voter? Or a consumer? Or a 17-year old wanting to “serve his country” and help “establish democracy and freedom across the world”?

As long as poshlust rules American culture and American hearts, and is offered up to juries, we may have a hard time joining the majority of the world in opposition to the death penalty. In this, we are truly victims.


Marc Estrin is a writer, cellist, and activist living in Burlington, Vermont




Andrew Bartnik


I had never seen the death walk before. I heard about it from defense lawyers. I had dreams about it. I thought about it plenty and feared it. I knew enough about it that it would look familiar if I ever saw it. A jury walks in and out of a death penalty trial several times a day. The courtroom stands at attention for each arrival and departure and the comings and goings give trial watchers, family members and defense investigators the opportunity to read meaning into their every step, facial expression, skin tone and eye sag. Generally there are very few conclusions can be drawn from reading these tealeaves. But the jury’s final walk into the courtroom when they have concluded their deliberations is the time to watch for the death walk. A jury that has decided a defendant should die for his actions will enter the court for the last time and not look at the defendant or the defense team. Their heads will be bowed as they walk in the room. Once seated their eyes will be trained on the judge. They will not take their eyes off him until the court clerk has read the verdict.

There is no way this jury was going to do the death walk. The seven men and five women who had given up the better part of two months of a truncated Vermont summer to sit on the first death penalty eligible trial in Vermont in over 50 years was not going to recommend a death sentence for Donald Fell. No way. Colleagues and court security officers all were quick to give me their analysis of the case. They told me over and over again how Vermont juries were different. There was no way a jury from Vermont was “gonna sentence anybody to death.” I watched these jurors since day one and began to believe the talk. They were a happy jury. The Honorable Judge William K. Sessions, a widely respected defense lawyer in his days before putting on a robe, had kept the mood in the courtroom as light as could be given the assignment we all accepted but never wanted. The jurors laughed and joked with each other at every opportunity. They went about their jobs with a lightness that never felt quite right for the business at hand. During sidebar conversations with attorneys from both sides of the case, Sessions would activate a white noise producing machine to assure their conversations were kept private between the combatants and the referee. Sessions, looking the part of kindergarten teacher, would smile every time he activated the machine telling the jury he was going to “put on the husher” and the jury was free to stand, stretch, and make small talk. The jury jumped at every chance, but it never seemed to me that they were doing it to combat the weight of the insane assignment they had been given. The journey from happy juror to life-snuffing juror was too far. The trip would have to take more than the nine hours they deliberated.

On Thursday July 14, 2005 at 11:40 a.m. we got word that the jury had reached a verdict. The call came to the defense team from Joanne Muir, the court’s clerk. I picked up the phone in our war room located on the 2nd floor of the United States Courthouse and heard Joanne’s familiar, friendly voice. After a quick hello she asked for one of the attorneys assigned to the case. For the past three months the defense team had utilized a 12 by 12-foot room as our primary meeting space. The room was functional, equipped with an ancient phone, fax, shitty copy machine and windows that actually opened. It smelled of stale coffee since the day early on in the trial when we spilled some fresh brewed on the absorbent cardboard boxes that doubled as a table. The room had mismatched chairs and borrowed desks pushed against the walls to give us an open space in the middle. It was government issued industrial but it was private and it held up. Our work ended on Wednesday and by Thursday morning the room had gotten small for the amount of tension it was trying to hold. Gene Primomo, the passion of the defense team, had found a computer down the hall that was connected to the Internet so he left our box to check on Lance Armstrong’s progress in the Alps. Sara Davies, a lawyer from the Northeast Kingdom and unofficial member of the trial team was with Donny when the call came. They were visiting in a cubicle in the attorney rooms provided by the United States Marshals on the top floor of the building. A steel mesh separated Donny and Sara, pen pals since Sara worked for the Federal Defender during her year in law school. As I was talking to Joanne, a Marshall interrupted their visit sending them both to the courtroom. I took the message from Joanne, hung up the phone and spread the news that we had minutes to get upstairs. My heart started beating in that way it does when you turn control over everything in your life to outside forces, like when you get to the top of a roller coaster hill and surrender to the inevitable plunge down the track.

By the time I got in the courtroom it was packed. It had been only minutes since I got the call from Joanne and I will never know how the word of a verdict had been reached spread so quickly. Dedicated trial observers who supported the prosecution and defense were joined by members of the press and office staff from every corridor of the building. Ironically, there was a seat saved for me between John Pacht, an attorney who represented deceased co-defendant Robert Lee, and Sara. Early on in the case against Fell and Lee, Pacht had been an unwitting source of inspiration for my work with Donny. I ran into John in the parking lot of the Northwest Correctional Facility in Swanton, Vermont shortly after his client committed suicide by hanging himself in this prison. He spoke sincere sad words to me. He told me he wished he spent more time with his now dead client and maybe he would have seen it coming. The truth was that John was powerless against the mental illnesses that ravaged Lee. Part of my job was to see Donny regularly at the jail. On snowy, cold days when I did not want to make the 45 minute ride north I would think about John and know that I never ever wanted to have that sick feeling he lives with whether it was justified or not. Over the next four years I would spend hundreds of hours with Donny. Many times our visits had nothing to do with case activity. I was there to check in with him, give him some distractions and hope and let him know that I cared about him. I visited him on his birthday. Every Wednesday before Thanksgiving (days away from the anniversary of the worst day of his life) I would visit him before driving home for the long weekend with my family. I would visit him before our Christmas holiday and share stories of the ups and downs of my personal life. I had seen Donny grow physically and mentally over the years. He was no longer the drug addicted skinny runt who could not look anyone in the eye because he was so filled with self-hate. He was a pleasant non-manipulating client that I considered a friend. We connected on many levels including a passion for music and hatred for the government decisions that affected his case. Donny was the unusual Federal Defender client who rarely asked for anything and if I was able to bring him a book or put some money in his commissary so he could buy decent shampoo he was appropriately grateful. Now I had to watch powerless as a jury issued their decision about a man I knew better than they did.

Sara warned me she was going to be emotional and might puke in the courtroom regardless of the verdict. She cautioned me to not comfort or touch her and when I got to my spot, there she was heaving with sobs before the court was called to order. I followed her instructions and said nothing as she tried to control herself. I pretended not to know her even though she crashed at my place the night before and we are good friends.

We stood shoulder to shoulder when jury entered the room. The courtroom is windowless but 30-foot high ceilings and warm acoustics made it feel comfortable until this moment. The first juror walked in with his head hung low. Each juror that followed had their eyes glued to the heels of the juror in front of them. They managed to get into the dark wood paneled jury box without picking up their heads at all. They took their seats in the blue leather chairs and looked at the judge and nowhere else. I had just watched a death walk.

Joanne read the decision by reading only the most important part of a complicated special verdict form. The jury decided that my friend, my client and someone I know is not the “worst of the worst” should receive death for his role in the events of November 27, 2000. I remember having another physical reaction as the verdict was read. My field of vision narrowed. I could not look past about 5 feet in front of me. All I saw were feet and pants and shirt bottoms. As the crowded room emptied I lingered. I stopped in the aisle leaning against the pew Mrs. King’s family had vacated and I was met by Steve Ratte, a deacon who had counseled Donny at the prison. I knew it was him because I remember the pinstriped shirt he was wearing. I was unable to pick my head up to look at him as we hugged awkwardly. It took the better part of an hour before I could fix my gaze on distances. I spoke to Ratte days later and he described the exact same tunneling of his vision and now I am left to wonder if the death walk is involuntary.


For the next hour I remember spending a lot of effort trying not to break down. Our team left the 5th floor, descending a back stairway down to our 2nd floor box again. I still had some work to do. We needed a copy of the special verdict sheet and I went to the court clerk’s office to get it. When making the life or death decision at the penalty phase of a death penalty trial jurors are asked to weigh aggravating factors dealing with the offense versus mitigating factors of the defendant’s life. If the jury finds that mitigating factors outweigh the aggravating factors then they must find for life. In fact, if one juror found that mitigators outweighed aggravators, then Donny would live. It is here in the special verdict form that the jurors actually reveal their thoughts about the case and break it down juror by juror, factor by factor. For this jury, their decision was death but the special verdict form is where they showed the work that led them to their final answer.

To me and those who do defense work for a living, the Fell jury’s findings were disheartening at the least, wrong at the most and showed why the nuts and bolts of defense work in these cases is designed to keep these cases from going to trial. It also begs our legislators to take the life and death decision out of the hands of juries. I believe a review of the Fell case puts another brick in the foundation of the current abolitionist movement.

In capital cases, the prosecution answers the questions of what crime was committed and how it happened, and the defense tries to answer the questions of “why.” To do this, defense teams do a multi-generational family history of the defendant to figure out exactly what road the defendant took that led him to commit an act so heinous he now has to fight for his right to continue breathing. Family and friends of the defendant are interviewed and re-interviewed. Exhaustive paper trail searches look through every piece of paper ever generated on a defendant and their family. We get school, medical, social service, police and court records. We pour over these pages and ask the hard questions looking for a nugget of information that can help explain how a killer was created and why he or she acted out on an impulse. If we find answers we then have to figure out how to bring them to court to support our argument for a sentence of life in prison with no possibility of parole. In most cases the truly meaningful information comes from the stories provided by family member interviews. After months of interviews and investigation, the horrible hidden secrets of family’s darkest moments begin to come out. If we find nothing, we keep looking. Concurrently, we are involved in consistent negotiations with the prosecutor’s office. We reveal most of our case to them pre-trial in the hopes they will see the case as one worth pleading out for life. We know that juries hate our clients and are taught that if we end up in a trial we have lost 80% of our chance to save our client’s life.

Donny’s case is extraordinary because our best information about Donny’s life came not from his family but from the thousands of pages of records we were able to find. We did not have only interested family members who wanted to help save Donny. We had unbiased reports from a seemingly unending trove of sources that told the horrible story of the life of Donald Fell.

In the ten years that I have been doing death penalty defense work, I have never seen trauma inflicted on a human to the extent that Donny suffered. His earliest memories are of filth. He suffered sexual, physical, mental and emotional abuse. Donny had more strikes against him by the age of 10 than Clemmons throws in a whole game. Abuse gave way to abandonment. Self-medication soothed abandonment. Self-medication made him feel comfortable as an outcast and it is among the other outcasts that he found a home. In fact, he became the unofficial “King of the Outcasts”, a title he earned by suffering more than the rest of the rebels. He committed petty crimes and drifted between ineffective placements, at one point being turned over to his Aunt Jackie Sharpe who was only 6 years his senior. Members of the Wilkes-Barre community believed she was retarded. He found Robert Lee; a severely mentally ill accomplice, and the two of them headed down a very dark road hand in hand. That road led them from Wilkes-Barre, Pennsylvania to Rutland, Vermont. By becoming biographers of Donny’s life, we discovered exactly how his rage was formed. Donny and Bobby would simultaneously explode on the 6 hours that followed 10:00 p.m., November 26, 2000.

Donny’s path was not of his choosing. The jury never understood we were not trying to excuse his actions. We knew there was no excuse. We wanted them to understand that Donny was not the “worst of the worst.” He was not a serial killer who got his rocks off by killing and mutilating his victims. He was not an enemy of the state who orchestrated mass murders of our citizens by suicidal airplane attack. He did not bomb federal buildings, Olympic celebrations or abortion clinics. He did not target children. He was not even the cold calculating Scott Peterson, the person our jurors singled out during voir dire as the man who really earned the death penalty. In fact, a high profile Medical Examiner who worked on and testified at the O.J. Simpson trial was brought to court by the government. He told the jury when the men left Mrs. King they probably did not know if she was alive or dead. The men inflicted no damage to Mrs. King other than what was necessary to kill her.

Trying to understand the mind and motive of a killer is a grim task but the courts have repeatedly instructed that the death penalty should be reserved for only the most awful murders so a review in this light is absolutely necessary. This is why the courts have put virtually no limit on the mitigation evidence that can be presented to a jury. A review of the special verdict form shows the jury saw the mitigating factors existed. They agreed that Donny was physically and sexually abused as a child. They found he was forced to witness acts of violence including seeing his parents stab each other. They found he had violent alcoholics for parents and they abandoned him as a child. They found him chemically addicted. They found he was raised with no good role models. They found he was institutionalized several times for mental health conditions. The most extraordinary finding on the verdict sheet was something the jury wrote. They took advantage of the blank spaces provided on the bottom of the form to fill in their own mitigating factor. “Total life experiences, failure of the Pennsylvania social and mental health services to effectively intervene in his childhood abuse and to treat or address his early antisocial behavior” was inked by one juror and 10 jurors said they agreed. The jury agreed with our arguments that we as a society failed Donald Fell. Then they decided the only way to make it right was to take the now rabid dog out back behind the barn and put him down. They found that a man who confessed to a crime without counsel, who assisted the police in finding Mrs. King’s body and volunteered to spend the rest of his life in prison was not remorseful for his actions. They found he WAS the worst of the worst. Their decision was predictable and wrong.

The Fell jury became emotional only once during the trial. When Mrs. King’s family took the stand and presented their pain and grief at the senseless taking of their mother, sister, loved one, the jury shared their pain. Mrs. King was a completely innocent victim of this crime. She was a family woman, a hard worker who scratched out the best life she could by working odd hours at Price Chopper. She filled her home with love and caring for her children and grandchildren showering both with the kind of attention and affection that Donald Fell would never know. How could a jury not be moved by her story? They were a jury of her peers. They could easily put themselves in her shoes, but Donny’s boots just did not fit. The emotion that poured out of the King family was real and understandable and they related to the victim because she was like them. No one in the courtroom was like Donny and this is precisely why trial is so dangerous.

I would argue that no jury is capable of drawing a distinction between which murder is worse than another, but this is the task that the Fell jury had placed in front of them. A death-qualified jury has little to no experience with violent crime. They are horrified by murder, any murder and rightly so. During pre-trial jury questioning we were struck by the number of prospective jurors who said they were against the death penalty in cases that involved accidental death. Those of us who deal with crime on a regular basis know that accidental death is not even a crime, let alone a crime punishable by death. Death cases are the only criminal matters that call on the jury to make punishment decisions and they are ill-equipped to make this call. How can a panel of law-abiding citizens draw distinctions between murders? All murders are tragic. All murders affect family members. All murders leave a gaping hole in someone’s family. But our courts have said that NOT all murders call for the death penalty. Jurors are called on to weigh the mitigating factors of a defendant’s life versus the aggravating factors involved in the crime itself and by an overwhelming majority they find that nothing outweighs the damage done to the victim and their family. They find no way to tell a bereaved family that their pain is less palpable than someone else’s.

We eliminated judges as the sole arbiter of who shall live and who shall die because in some jurisdictions they were bowing to outside influences and political ambitions. I believe jurors are not interested in the job of figuring out what life-altering horror is worse than another. They unanimously rejected mitigation, the only clue we can offer to explain the inexcusable.

About an hour after the verdict we had collected ourselves as a team and we were ready to walk out the doors of the courthouse. Personally, I have never felt lower. I have lived with Donny and this case for almost 5 years. Over my professional life I have seen the worst of the worst and knew that Donny was not a criminal of that caliber. He was, and still is, a terribly abused drug-addicted damaged person who because of his actions does not deserve to exist outside the walls of a prison. He is also a kind, exceptionally well-read, intelligent, spiritual person who could find a home and comfort in the structure that a lifetime in confinement could offer. Life in prison with no possibility of parole would have been far better than any life he had known. Because we as a community failed Donny as I child, I believe we owe him that life.

As we exited the courthouse for the final time, we walked smack into the King family who were debriefing (not celebrating) the verdict with the press. It was here that the King family reached out to us. They embraced the lawyers who defended the man that killed Theresa King. They hugged the lawyers and thanked them for their professionalism. A picture of this moment was captured by the press and given front-page treatment throughout New England. It was a spontaneous genuine show of respect and caring, the kind of display that would have made Mrs. King and Donald Fell proud.

Days later, I was meeting with members of Vermonters Against the Death Penalty and I was asked about the hugs by one of the nuns who joined our protest movement. She thought it was strange that we would accept the embrace of the King family and I have been thinking about that moment ever since. We had survived this trial, lived through it side by side but with different goals. And when it was over we shared our respective loss. We were a gang of losers in an un-winnable game.


Andrew Bartnick was the lead defense investigator on the trial team that represented Donald Fell. Bartnick has worked on Death Penalty-eligible cases since 1996 and currently is a licensed Private Investigator.

Death Penalty: Two Essays

  • Author: Fomite
  • Published: 2017-01-20 12:55:10
  • Words: 6810
Death Penalty: Two Essays Death Penalty: Two Essays