United States District Court, D. Vermont
MEMORANDUM OPINION AND ORDER: MOTION TO AMEND PETITION
WILLIAM K. SESSIONS, III, District Judge.
Donald Fell has moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence of death, to vacate and set aside his judgment of conviction, and to grant him a new trial. Now before the Court are Fell's motions for leave to file a redacted, amended 28 U.S.C. § 2255 motion and to seal selected exhibits. ECF 419, 420. For the reasons set forth below, the motion to amend is GRANTED in part and DENIED in part, and the motion to seal is DENIED.
Fell timely filed his Section 2255 motion on March 21, 2011. The motion alleges, among other things, that juror misconduct deprived him of his rights to an impartial jury under the Fifth, Sixth, and Eighth Amendments. He now seeks to amend his juror misconduct claims.
Fell's initial Section 2255 motion asserts misconduct by three jurors. He first alleges that prior to voir dire, two jurors did not answer their juror questionnaires completely and truthfully, and one of those jurors misled the Court about his prior knowledge of the case. Fell contends that had these jurors given honest responses, they would have been stricken for cause. Second, Fell alleges that two of the three jurors were exposed to extra-record influences. Third, he claims that one of the jurors was coercive during penalty-phase deliberations. His proposed amended claims focus upon the same group of three jurors, and add a claim of juror questionnaire omissions by a fourth juror.
A. Juror 26
Jury selection began in this case on May 4, 2005. Potential jurors were initially asked to complete a short questionnaire, and subsequently completed a longer, more detailed questionnaire. Question 43(b) of the long form questionnaire asked, "Have you or has a family member or close friend ever been charged with a crime?" Juror 26 answered "no." Fell alleges in his initial Section 2255 motion that, in fact, Juror 26 was convicted in April 1996 of misdemeanor unlawful mischief arising out of a marital dispute. Fell contends that this "misrepresentation" deprived defense counsel of critical information about Juror 26's ability to evaluate evidence of domestic turmoil in Fell's life.
The initial Section 2255 motion further claims that Juror 26 misrepresented the extent of his knowledge about Fell's case. During voir dire, the following exchange took place:
COURT: Have you heard anything about this case?
JUROR NO. 26: No, not really. No.
COURT: Do you know any of the facts at all?
JUROR NO. 26: No. I think at one point, a long time ago, I heard something in passing, but other than that, no.
COURT: Do you remember what you heard?
JUROR NO. 26: That just that a woman had been kidnapped, and that was the only thing that I, I can recall.
Individual Voir Dire Tr. 90:7-17, May 13, 2005. In an interview on January 15, 2011, Juror 26 allegedly admitted to Fell's counsel that in 2001 he watched a television news report concerning the suicide of Fell's codefendant, Robert Lee. Fell claims that this admission reveals Juror 26 knew more about the case than his response to the Court implied, and that his knowledge of Lee's suicide was highly prejudicial.
The proposed amended Section 2255 motion offers supplemental allegations with regard to Juror 26's responses to the juror questionnaires. Specifically, Fell now claims that Juror 26 failed to reveal his criminal history on both the long and short form questionnaires. He further alleges that in addition to the unlawful mischief conviction, Juror 26 was convicted of driving under the influence in 1995, and of misdemeanor non-payment of wages in the mid-1990s. Juror 26 also allegedly failed to reveal his son's prior criminal history, failed to mention the involvement of he and his family in various civil suits, and withheld the fact that his father served in local government. Finally, the amended motion sets forth a revised discussion of Juror 26's alleged exposure to extra-record information.
B. Juror 143
Fell's initial Section 2255 motion claims that during the guilt phase of the trial, Juror 143 drove to Rutland, Vermont to undertake his own investigation of Fell's crimes. Juror 143 allegedly drove past the residence of Fell's mother, Debra Fell, where she and Charles Conway were murdered, and inspected the area around the Price Chopper where Fell and Lee first encountered victim Teresca King. Juror 143 then shared his impressions with his fellow jurors. This conduct, Fell submits, violated Juror 143's pledge not to learn anything about the case outside what was presented in court. Juror 143 ...