At­tor­neys: Move ‘Scotty’ mur­der trial

Lawyers of de­fen­dants say lo­cal ju­rors won’t be im­par­tial

Daily Local News (West Chester, PA) - - FRONT PAGE - By Michael P. Rel­la­han mrel­la­han@21st-cen­tu­ry­ @Ch­escoCourtNews on Twit­ter

At­tor­neys for the man and woman ac­cused of the bru­tal tor­ture and mur­der of 3-year-old Scott “Scotty” McMil­lan want the trial of their clients moved from Ch­ester County, or to have the ju­rors in the cap­i­tal case cho­sen from an­other lo­cale and brought here, say­ing the ex­ten­sive pre-trial press and so­cial me­dia ac­counts of his death have for­ever tainted the lo­cal jury pool against them.

The re­quests come among a mul­ti­tude of pre-trial mo­tions filed by both de­fen­dants and the pros­e­cu­tion in the case, which be­gan two years ago with the dis­cov­ery of McMil­lan’s life­less body on Nov. 4, 2014, in the home he shared with his mother, brother, and the man who au­thor­i­ties said as­saulted him re­peat­edly over the course of some weeks.

In pre-trial mo­tions filed re­cently with Com­mon Pleas Judge William P. Ma­hon, de­fense at­tor­ney Ge­orge S. Ya­coubian Jr. of Rad­nor, who rep­re­sents Gary Lee Fel­len­baum, said that his client’s con­sti­tu­tional right to a fair trial had been hope­lessly com­pro­mised by the pre-trial pub­lic­ity the case had re­ceived in news­pa­per ar­ti­cles, tele­vi­sion broad­casts, and in­ter­net post­ing.

“The self-ev­i­dent con­clu­sion is that this county has been so sat­u­rated with the facts un­der­ly­ing this case that it is im­pos­si­ble for de­fen­dant to re­ceive a fair trial be­fore a jury of im­par­tial per­sons who learn of the case only through the ev­i­dence prop­erly ad­mit­ted dur­ing trial,” Ya­coubian wrote in his re­quest for a change of venue.

Lau­rence Harmelin of West Ch­ester, a vet­eran county de­fense at­tor­ney rep­re­sent­ing Jil­lian Tait, McMil­lan’s mother and Fel­len­baum’s girl­friend, also filed a mo­tion re­quest­ing the trial be moved.

Harmelin made men­tion of al­most one dozen ar­ti­cles about the McMil­lan mur­der and the up­com­ing trial in the Daily Lo­cal News, as well as an on­line poll that ap­peared in 2015 ask­ing “Death Penalty for Cou­ple Who Tor­tured Boy?” He noted that many of the sto­ries in­cluded graphic de­scrip­tions of McMil­lan’s death and the al­le­ga­tions against Tait.

“The wide dis­sem­i­na­tion of such grue­some, sym­pa­thy-en­gen­der­ing, front­page news sto­ries, Face­book ar­ti­cles and in­ter­net polls, has cre­ated a sub­stan­tial like­li­hood that a fair trial can­not be pro­vided, as it will be im­pos­si­ble for the de­fen­dant to se­lect a fair and im­par­tial jury of cit­i­zens from Ch­ester County,” Harmelin wrote.

Both at­tor­neys ask Ma­hon to ei­ther move to trial to an­other county in the state, or in the al­ter­na­tive to bring res­i­dents of an­other county here to hear the case.

A hear­ing on that mo­tion, as well as the three dozen or more oth­ers that were filed by the dead­line Ma­hon im­posed ear­lier of Nov. 1, will be held on Jan. 5, 2017. The trial is sched­uled to start April 3, 2017, with jury se­lec­tion.

Ma­hon has re­port­edly ex­pressed con­cern pri­vately about the jury se­lec­tion process in the case of both Fel­len­baum and Tait, who at this point will be tried to­gether. Not only is the trial one in which the pros­e­cu­tion is seek­ing the death penalty against both de­fen­dants, which would re­quire ex­ten­sive ques­tion­ing of each pan­elist to see whether they could im­pose a death sen­tence, but it also has been the sub­ject of much dis­cus­sion in the me­dia, both locally and na­tion­ally.

In ad­di­tion, the al­le­ga­tions them­selves that have been made against both de­fen­dants — that they par­tic­i­pated in the beat­ing and tor­ture of 3-year-old Scotty and his older brother, now 8, and kept him from med­i­cal care in the West Caln trailer home they shared with Fel­len­buam’s wife, Am­ber Marie Fel­len­baum, and the Fel­len­baum’s young child — could make it ex­traor­di­nar­ily dif­fi­cult to im­panel a jury made up of peo­ple who de­clare they could judge the case fairly on the facts alone and not on sym­pa­thy for the vic­tims.

Ma­hon is re­port­edly con­sid­er­ing call­ing in dozens more prospec­tive ju­rors from the county than the 124 he had sum­moned in the last death penalty case over which he presided, that of Coatesville chain­saw killer Laquanta Chap­man. He has also noted that ex­tra al­ter­nate ju­rors might need to be em­pan­eled be­cause of the pos­si­bil­ity that some ju­rors cho­sen might not be emo­tion­ally able to com­plete the trial.

The last time a trial for a county crime was tried out of the county was re­port­edly the es­cape case in­volv­ing then-con­victed mur­derer Ni­cholas Yar­ris, who jumped out of a con­sta­ble’s car in West White­land and fled while be­ing trans­ported from state prison to Delaware County. That was held in Carlisle, Cum­ber­land County in the mid-1980s.

The in­fa­mous John­ston Broth­ers mur­der tri­als were also heard by out-of-county ju­ries in the early 1980s.

Ya­coubian, the pri­vate at­tor­ney who was hired by Gary Fel­len­baum’s fam­ily to re­place the county’s Pub­lic De­fender’s Of­fice over the sum­mer, has made it clear in his mo­tions that he is very con­cerned about the way the ju­rors are given the ev­i­dence in the case.

In his mo­tions, he asks Ma­hon to for­bid all “in-life photographs” of McMil­lan that might prove in­flam­ma­tory to the ju­rors; shield them from know­ing be­fore­hand what case they might be hear­ing; and or­der that there be strict rules about be­hav­ior by those at­tend­ing the trial, in­clud­ing no talk­ing or shak­ing heads dur­ing tes­ti­mony, or dis­play­ing signs, ban­ners, or cloth­ing that might be prej­u­di­cial, both in the court­room and out­side the court­house.

For its part, the pros­e­cu­tion also filed mo­tions in the case last week. In them, they ask Ma­hon to al­low a com­puter sim­u­la­tion of the case to be used in open­ing state­ments, and to have McMil­lan’s older brother, who is ex­pected to tes­tify, give his tes­ti­mony out­side the pres­ence of Fel­len­baum. First Dis­trict At­tor­ney Michael Noone, who is lead­ing the pros­e­cu­tion, also asked Ma­hon to al­low an uniden­ti­fied “sup­port per­son” to be with the older child when he tes­ti­fies.

The Daily Lo­cal News is not re­port­ing the name of the older brother.

Gary Fel­len­baum, 25, Tait, 32, and Am­ber Fel­len­baum, 25, all worked at the Wal­mart in western Ch­ester County in the sum­mer and early fall of 2014. Tait moved in with the Fel­len­baums at a trailer home on Hope Lane some­time in Septem­ber, 2014.

Be­gin­ning in Oc­to­ber 2014, ac­cord­ing to the al­le­ga­tions set forth in the case against the Fel­len­baums and Tait, Gary Fel­len­baum be­gan phys­i­cally abus­ing both of Tait’s sons. The abuse in­cluded punches and beat­ings, but also whip­ping with a crudely fash­ioned “cat o’nine tails,” and ty­ing the boys to chairs or hang­ing them up­side down by their feet.

Al­legedly Fel­len­baum’s beat­ing of Scott McMil­lan es­ca­lated to the point where the boy could not hold down his food. An­gered, Fel­len­baum al­legedly punched him in the face so hard he fell out of his chair, and later punched him in the stom­ach. The boy be­gan vom­it­ing and later passed out. Although Fel­len­baum and Tait tried to re­vive him, they left him alone in a bed­room for sev­eral hours be­fore find­ing him com­pletely un­re­spon­sive in the evening of Nov. 4, 2014.

Both al­legedly gave in­crim­i­nat­ing state­ments to po­lice in­ves­ti­ga­tors after their ar­rests. Ya­coubian and Harmelin have asked Ma­hon, in their mo­tions, to sup­press those state­ments, say­ing they were given un­der duress.

Am­ber Fel­len­baum, who did not par­tic­i­pate in the al­leged abuse, called 911. She is not charged with mur­der, but rather with en­dan­ger­ing the wel­fare of chil­dren and reck­lessly en­dan­ger­ing an­other per­son.

“The wide dis­sem­i­na­tion of such grue­some, sym­pa­thy-en­gen­der­ing, front-page news sto­ries, Face­book ar­ti­cles and in­ter­net polls, has cre­ated a sub­stan­tial like­li­hood that a fair trial can­not be pro­vided, as it will be im­pos­si­ble for the de­fen­dant to se­lect a fair and im­par­tial jury of cit­i­zens from Ch­ester County.” — Lau­rence Harmelin, de­fense at­tor­ney

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