Feds take over fatal Schenectady fire case

PHOTOGRAPHER: Steven Cook

Federal prosecutors Tuesday formally took over the case against the man accused of setting the fire last month that killed a father and three children.

With the decision to take the case federally also comes the possibility that prosecutors might seek the death penalty against accused arsonist Robert Butler, though no formal decision to seek that was announced.

Also, with the federal prosecution comes a court filing that sheds more light on the case against Butler, including accusations that Butler set the fire because David Terry kicked him out of the house.

Read the charges

For details of the federal charges filed in the Schenectady fire that killed a man and three children and critically injured a fourth, click HERE.

As a result, according to the federal filing, a drug-fueled Butler traveled to Schenectady with friends, purchased gasoline and set fire to the 438 Hulett St. staircase that led to Terry’s second-floor apartment.

“Butler walked into the building through the door which led to the stairs used to access the second-story rental unit and, though one person yelled ‘no,’ Butler distributed gasoline around and lit the fire,” the federal complaint reads.

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.

The only child to survive was 5-year-old Safyre Terry, a girl described as her father’s princess. She remains under sedation at Westchester Medical Center, family said Tuesday, though she has begun to breathe on her own.

The federal prosecution was announced Tuesday afternoon at Butler’s court appearance in Schenectady City Court.

Attending the court appearance were several members of the Terry family, including David Terry’s sister Elizabeth Dolder. Dolder and her husband cared for Layah Terry and had dropped her off to visit her father the morning before the blaze.

Butler, 27, of Saratoga Springs, appeared in court in his orange jail clothing with his attorney, Mark Juda. His left leg shook through the court appearance.

Watching Butler were Terry family members, including Dolder. Family members each wore T-shirts with the logo of David Terry’s nickname “Superman” with wings attached and the names of the three children lost and the one fighting for life.

Afterward, Dolder described what she saw in court as “evil.”

Regarding the move to federal court and the possibility of the death penalty, Dolder said she is “all for it.”

“He should never be free to do this to another family. These children were laying peacefully in their beds,” Dolder said. “How dare him.”

“Their last moments,” Dolder’s husband Michael continued, “must have been horrific. We can’t fathom what those children were going through.”

The federal criminal complaint lays out the events prosecutors say led to those final moments as follows:

The path began at least three days prior to the fire, as Terry threw Butler out of the 438 Hulett St. apartment for hitting Jennica Duell. Duell has been described as the mother of the children. Terry was the father.

On the evening of May 1 and into the early hours of May 2, Butler continued to fume, according to the filing. He was with friends in Saratoga Springs and he and some others were using drugs.

“Negative statements” were made about David Terry, the complaint reads. Butler responded by saying “he would take care of it, or words to that effect.”

Early in the morning hours, Butler and three others left Saratoga Springs for Hulett Street in Schenectady. On the way, Butler “said something about killing David Terry,” the complaint reads.

The group stopped for gasoline and then arrived on Hulett Street. Butler got out, went to the trunk and poured gasoline into a clear bottle.

He then set the stairway on fire.

“Butler told the others that ‘we were never here,’ and ‘we were in Saratoga all night,’ or words to that effect,” the complaint reads.

Police caught up with Butler and two of the other three later that day. All three initially claimed they were in Saratoga Springs all night. The other two, though, soon changed their story, describing what happened and being present when Butler started the fire.

Also, as Butler waited in the interview room, the standard police camera was recording. As he waited alone, he was caught on tape saying “I didn’t want to do it, Jennica, the kids.”

One detective interviewing Butler also smelled gasoline on him. A later forensic examination of Butler’s clothing did not reveal gasoline.

Butler’s attorney Juda said his client denies setting the fire and “wasn’t anywhere near that apartment when that fire happened.” Juda said his client was in Saratoga Springs at the time.

Butler is expected to have a different attorney in the federal case. No new attorney was listed Tuesday.

Butler is formally charged with one federal count of arson, accused of maliciously damaging and destroying a building “used in interstate commerce,” causing death.

The complaint details how the building was a rental property, pointing to city rental certificates and an interview with the owner. That a property is a rental, or business property, makes it interstate commerce, according to a 1985 Supreme Court case.

The resulting deaths would also make Butler eligible for the death penalty if convicted. He could also face up to life without parole. No decision on what federal prosecutors will seek was announced Tuesday.

Those possible sentences compare to a possible maximum sentence in state court of 25 years to life. Multiple deaths from a single act of setting a fire would not result in consecutive sentences, Schenectady County District Attorney Robert Carney said.

Possible sentences aside, Carney said the case better fits in federal court. He cited procedural differences between state and federal court that favor federal prosecution in the Butler case.

For example, federal rules allow hearsay evidence for an indictment, and there are different rules for witness immunity.

“In this particular case, given the state of the evidence, federal prosecution, I believe, was favorable,” Carney said.

Carney said he had initiated discussions with the U.S. Attorney’s Office in Albany early in the case. He also has been discussing the possibilities with them closely for several weeks.

Family members said they will be at each and every court appearance for Butler, making sure justice is served.

They’ll also be there for young Safyre as she recovers from her devastating injuries.

“Please pray for Safyre, I beg, I beg the world,” Elizabeth Dolder said. “Pray for her, because she’s coming, she’s got a long way.”

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.