Federal court may get arson case

PHOTOGRAPHER: Steven Cook

The man accused of setting a fire last month that killed four people, including three children, is due back in court today and could learn soon where his case will be prosecuted — in state court or in federal court.

If the case is prosecuted in federal court, the suspect could face the possibility of the death penalty or life in prison if convicted. In state court, he would face up to life in prison if convicted in the deaths.

Meanwhile, the child who survived the fire remains in critical condition, according to her aunt, who is asking the community to continue to pray for the girl.

Elizabeth Dolder said family members expect to be in court today to see the “monster” accused in the horrific crime. Dolder said she did not want to call the man by his name.

The arson case and expected murder case against Robert Butler are currently in state court. But Schenectady County District Attorney Robert Carney confirmed Monday there is a possibility that the case could be prosecuted federally.

Carney declined to elaborate. But he said a decision could be made soon.

Killed in the May 2 fire at 438 Hulett St. were father David Terry, 32; and children Layah Terry, 3; Michael Terry, 2; and 11-month-old Donavan Duell.

‘strong will to live’

The only child to survive was 5-year-old Safyre Terry. She remains under sedation at Westchester Medical Center, Dolder said Monday.

“She’s got a strong will to live,” Dolder said of Safyre.

Dolder said she believes prayers are having an impact.

Dolder and her husband, Michael, were raising Layah Terry. Layah was visiting her father at the time of the fire.

Family members have set up the Terry Family Fund, through SEFCU, to help cover expenses incurred as a result of the fire, including travel to see Safyre. Anyone wanting to donate can do so at any local SEFCU branch.

Dolder said she couldn’t give enough praise to investigators working the case, calling them “amazing.”

“They’ve all been wonderful,” Dolder said.

Butler, 27, of Saratoga Springs, currently faces one count of first-degree arson. He is accused of entering the front stairwell of 438 Hulett St. just after 4:30 a.m., dousing it with a liquid accelerant and setting it ablaze.

The stairs, authorities say, led to a second-floor apartment where the victims lay sleeping. Two others in the upstairs apartment, as well as those in the downstairs apartment, escaped without injury.

Butler has been described as a former boyfriend of the children’s mother.

Butler remains at the Schenectady County Jail without bail. His attorney could not be reached for comment Monday.

A federal prosecution in an arson case that involves fatalities could carry the possibility of the death penalty, according to accounts in prior cases.

There have been local arson cases that were prosecuted as federal cases.

In September 2009, an arson fire at a Broadway apartment was prosecuted federally. In all, 11 people lived in that house and everyone got out safely, but a firefighter suffered minor burns.

Prosecutors said in the indictment that the property “was used in interstate commerce, and in activities affecting interstate commerce.” The defendant was ultimately sentenced to five years in federal prison.