ALBANY – A lawsuit filed by the man initially arrested and held in the 2013 fatal Schenectady arson fire that killed four and severely injured 5-year-old Safyre Terry has now been dismissed.
A federal judge last month found in favor of the investigators in the case and against Robert Butler and dismissed the last remaining claims against investigators from both the city police department and the federal Bureau of Alcohol Tobacco and Firearms.
Butler, then 27, was arrested shortly after the May 2, 2013 fire on Hulett Street and charged with arson. He spent nine months in jail before federal prosecutors dropped the charges against him as a second suspect in the fire emerged.
Butler filed suit in December 2016 against both city and federal investigators. U.S. District Judge Mae A. D’Agostino earlier dismissed claims from Butler over false arrest and false imprisonment, citing the statute of limitations, but allowed a claim for malicious prosecution to continue.
In her ruling issued March 23, D’Agostino, however,dismissed the final malicious prosecution claims. The judge found, among other conclusions that neither the Schenectady investigators or the ones from the ATF initiated the prosecution, and that there were no allegations of evidence fabrication or misrepresentation of witness testimony.
But the judge also found in both cases that the prosecutions, first in state court and then in federal court, were based on valid probable cause to file the charges.
The judge outlined the list of evidence gathered against Butler in the hours, days and weeks following the fire, including the statements of two people who are now in prison for perjury.
“These facts, set forth in more detail above,” D’Agostino wrote toward the end of her decision, “are clearly sufficient to support the finding of arguable probable cause.”
The fire at 438 Hulett St. that killed David Terry, 32, and his children: Layah, 3; Michael, 2, and Donavan Duell, 11 months. The fire also severely injured Safyre Terry, then 5.
As the case against Butler moved from state court to federal court, Butler faced a potential death sentence, if convicted.
Prosecutors dropped the charges against Butler after the second suspect emerged: Edward Leon, formerly of St. Johnsville. Leon is also in prison, having been convicted of lying about the case. He has not been charged in connection with the fire. In fact, no such charges have been filed against anyone, nearly seven years later.
Butler’s attorney contended the case against Butler was largely based on the statements of two people, Jennica Duell and Brian Fish, calling the statements coerced, the judge noted.
But D’Agostino detailed other evidence that pointed investigators to Duell, Fish and Butler, including statements from three witnesses who lived nearby who said they heard Duell on the street that morning at the time of the fire. When confronted with those statements Duell “promptly changed her story” and said she, Fish and Butler were there, the judge noted.
Both Fish and Duell’s statements developed inconsistencies, the judge noted, but the core of their statements did not change.
“These inconsistencies, and the possibility that someone else might have been responsible for the fire, do not change the fact that the Schenectady Defendants had probable cause to arrest and file the felony complaint against (Butler),” DAgostino wrote.
The case soon moved from state to federal court and the federal investigators continued on the case, including looking at Leon as a possible suspect, the judge wrote. That investigation eventually led to Leon admitting he had gone to Schenectady the morning of the fire and that he saw flames at the home, but did not set the blaze. Leon was the former boyfriend of David Terry’s then girlfriend.
Thomas J. O’Connor, an attorney for the Schenectady defendants, noted the Schenectady investigators put in hundreds of hours on the case. “I thought they did a remarkable job following up on every lead.”
O’Connor also noted those who perjured themselves were punished and the judge in the lawsuit found there was probable cause to initiate the state prosecution against Butler.
Attorney Karen Lesperance, who represented the ATF defendants, declined to comment this past week on the decision.
Butler’s attorney Raymond Gazer, could not be reached.