- Associated Press - Thursday, June 29, 2017

MONTPELIER, Vt. (AP) - The federal death penalty retrial of a man charged with killing a Rutland supermarket worker nearly 17 years ago is being delayed again so prosecutors can appeal a judge’s decision to exclude from the trial’s penalty phase the testimony of a man who participated in the crime, but died in prison.

Both defense attorneys and prosecutors agreed the testimony of Robert Lee could not be used in the guilt or innocence phase of the second death penalty trial of Donald Fell. Prosecutors, however, wanted to use it during the penalty phase of the trial when, if Fell is convicted, jurors would decide whether or not he should be executed for the killing of Terry King.

In a ruling last month, U.S. District Court Judge Geoffrey Crawford granted a request by the defense to exclude Lee’s testimony from the potential penalty phase of the trial.

Prosecutors last week said they planned to appeal Crawford’s ruling. At a hearing, Crawford agreed to delay Fell’s trial until the appeal has been completed.

It’s the latest legal twist in the case that began in November 2000 when Fell and Lee allegedly killed Fell’s mother and her boyfriend in her Rutland apartment. They were never charged in that case.

Authorities said they then kidnapped King, a 53-year-old grandmother, as she arrived for work at a Rutland supermarket so they could steal her car and leave town. She was later killed her in New York.

Lee died accidentally in 2001 while being held at the Northwest State Correctional Facility in St. Albans pending trial, but before he died he gave police his version of events.

Fell was tried and sentenced to death in 2005, but his conviction was overturned in 2014 for juror misconduct. The case had been scheduled for retrial in February, but it was delayed until September. That date has now also been pushed back.

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