Daily Local News (West Chester, PA)
‘Scotty’ trial won’t move, for now, judge says
WEST CHESTER >> The judge overseeing the upcoming trial of Gary Lee Fellenbaum III for the murder of 3-year-old Scott “Scotty” McMillan ruled Monday that the trial would not be moved from Chester County, nor would jurors from outside the county be called in to hear the because of pre-trial publicity — at least for now.
But Judge William P. Mahon told attorneys for the prosecution and defense that his stance could change depending on what situation presents itself as prospective jurors begin to be questioned about the case when the trial begins in September.
The judge left open the possibility that one or another alternative might be necessary if he finds it difficult to impanel an impartial jury to hear the case against Fellenbaum, against whom the prosecution is seeking the death penalty.
Mahon made his ruling at the end of a morning’s worth of attention to more than two dozen pre-trial motions filed by the two sides in the case, dealing with matters concerning everything from jury selection to the presentation of evidence and decorum in the courtroom during the trial. Many of those were disposed of by agreement of the prosecution and defense, while others Mahon said would be more appropriately addressed as the trial date neared.
He was also expected to hear the argument from defense attorney George Yacoubian Jr. of Radnor that the statement that Fellenbaum gave to police investigators the night that McMillan’s lifeless body
was found in a bedroom that Fellenbaum shared with the boys’s mother and his estranged wife in November 2014 should be suppressed.
In his motion to move the trial, Yacoubian had argued that the amount of publicity that McMillan’s death and Fellenbaum’s arrest on firstdegree murder and other related charges had received made it impossible to get a fair trial in the county. If anything, he said, Mahon could order that the jury pool be called from another county so as not to waste time trying to find residents here who could judge the case fairly.
Press accounts, social media posts, and other publicity have not let up since McMillan’s
death 2 ½ years ago, Yacoubian said. They picked up again last week with the news that McMillan’s mother, Jillian Tait, who had been charged alongside Fellenbaum with his death, had pleaded guilty and would testify against him, as did Fellenbaum ex-wife, Amber Fellenbaum.
Tait entered a guilty plea to charges of third degree murder, conspiracy to commit first-degree murder, aggravated assault, and related charges dealing with the beating and torture of McMillan and his older brother. Amber Fellenbaum pleaded guilty to endangering the welfare of children and recklessly endangering another person.
First Assistant District Attorney Michael Noone, who is leading the prosecution, argued that there had been
nothing established for the record that would show that the jury pool in the county was so poisoned by pre-trial publicity to necessitate moving the trial or bringing in jurors from another county.
Noone noted that in two recent instances where such arguments had been made — the trial of a man accused of ambushing two state troopers in Pike County, and that of comedian Bill Cosby — the circumstances were far different from Fellenbaum’s situation. Residents of Pike County had their very lives disrupted during a 49-day manhunt for the alleged perpetrator, while Cosby is one of the nation’s most famous and recognizable persons.
Mahon said that although Fellenbaum’s case had received a significant amount of press coverage, it was not his perception that it would necessarily preclude picking a jury that could decide the case on its merits.
“This is a county of in excess of 500,000 people,” he noted. “To bring in a jury from another county at this point does not seem warranted.”
He told Yacoubian, however, that if during jury selection it appears that people state unequivocally that they have their minds made up about Fellenbaum’s perceived guilt and the need for the death penalty, “You can raise (the motion) again at that point.”
In addition to the other motions, Mahon ruled finally that he believed Fellenbaum was competent to stand trial in the case. In January, Yacoubian had raised the possibility that his client may not be competent, based on conversations he had held with him at the time.
But Mahon said he had received a report from a defense psychologist, Michael Keesler, which stated that Fellenbaum was not suffering
from any mental health condition that would keep him from assisting Yacoubian at his trial. “He is competent,” Mahon declared.
The morning session was attended by members of Fellenbaum’s family, as well as members of the group Bikers Against Child Abuse, who are watching the proceedings.
McMillan died on Nov. 4, 2014 of multiple blunt force trauma brought on by weeks of beating and torture he allegedly suffered at the hands of Fellenbaum and his mother, Tait.
Beginning in October 2014, according to the allegations set forth in the case, 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.
“This would never have happened if he had just eaten his breakfast,” a West Caln officer who watched Fellenbaum while he was in custody testified he told her.