Killer appeals Vermont death sentence

Lawyers for the first man sentenced to death in Vermont since 1957 appeared before a federal appeals court Wednesday, trying to get his punishment overturned on grounds including comments prosecutors made about his clothing.

Donald Fell, 27, wore a shirt celebrating the heavy metal band Slayer when he and an accomplice stabbed his mother and one of her friends to death in Rutland, Vt., after a night of heavy drinking in 2000.

He was wearing the same shirt when he carjacked and kidnapped a stranger, Terry King, as she arrived for work at a supermarket. Fell later beat and kicked the woman to death after driving her to upstate New York.

It was those last crimes _ the carjacking and murder _ that landed Fell on death row. Vermont does not have a death penalty, but Fell was charged under a federal law that allows capital punishment in certain kidnap killings.

Prosecutors argued during the penalty phase of Fell's trial that the shirt and other clues were evidence that Fell had an interest in Satanism dating to his teenage years, when he had the number 666 tattooed on his arm, and joked with his sister about Satan being "the kindest beast."

Fell's lawyers said the accusation was improper. The shirt, he said, had nothing to do with Satanism, even if it did feature a drawing of a demon.

"He made an offhand comment to his sister when he was 15. He got a tattoo. He listens to heavy metal music," attorney John Blume said. That doesn't make him a Satanist, he said.

Judge Barrington Parker, a member of a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York, noted Wednesday that "tens of thousands of teenagers" probably have similar shirts.

But he also noted that there was something frightening and unexplainable about the ferocity of Fell's crimes that came across as he read trial transcripts.

"There is page after page of hair-raising testimony," Parker told Blume. "It's something this court hasn't seen in 40 years."

"He seems to be taking a lighter view of killing than most people," Judge John Walker said.

Asked by the judges whether prosecutors believed that Fell killed because he was a Satanist, Assistant U.S. Attorney William Darrow said, "No."

Fell is trying to avoid becoming the first person executed for a crime in Vermont since 1954.

His legal team has, among other things, challenged the constitutionality of the system for federal death penalty trials, in which guilt and punishment are decided in two phases. Blume said it should be a three-phase system.

Blume also said three potential jurors shouldn't have been excluded from the case for expressing reservations about the death penalty.

The appeal team has also taken issue with a comment a prosecutor made to the jury that faulted Fell for refusing to take responsibility for his actions by pleading guilty.

In fact, Fell at one point had struck a deal to plead guilty in exchange for a life prison term, but the bargain was nixed by John Ashcroft, attorney general at the time.

Judges didn't indicate when they would issue a decision. Appeals in death penalty cases generally take years to resolve.