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What you need to know for 06/26/2017

False memory expert could testify in arson perjury trial

False memory expert could testify in arson perjury trial

Hulett Street fire killed 4 members of family
False memory expert could testify in arson perjury trial
Schenectady firefighters battle a blaze at 428 Hulett St. on May 2, 2013, in Schenectady.
Photographer: PETER R. BARBER

The last perjury defendant in the Hulett Street fatal arson case wants the charges against him either dropped or consolidated and may present an expert in false memories at his trial, according to recent court filings.

Bryan Fish is facing trial next month on three counts of perjury related to the arson case. He allegedly told three separate lies about a driver in a now-discredited account about who started the May 2013 fire that killed three children and a father, as well as maimed then-5-year-old Safyre Terry.

Fish faces up to 15 years in federal prison if convicted of all counts against him.

Fish's attorney, Frederick Rench, is arguing that his client recanted false testimony within 11 days and that contradictory testimony offered by another figure in the case minimized the impact on the grand jury proceedings as a whole.

Rench also gave notice that the defense may call an expert in the field of false memory to the stand. The expert, Deryn Strange, of the John Jay College of Criminal Justice, would comment on the videotaped police interrogation of Fish.

"She will testify as to the factors that can cause or contribute to false memory, the questions, comments, representations, misrepresentations and interrogation techniques used by law enforcement ... could impact the creation and maintenance of false memory in Bryan Fish," Rench wrote.

Fish's false account helped lead to charges against Robert Butler, then 27, who was accused of setting the fatal fire. Butler spent nine months in custody before prosecutors dropped the charges and freed him as another suspect emerged.

Butler has since sued investigators for false arrest and malicious prosecution. The suit remains pending.

No one is now charged with setting the blaze, but Fish and three others were charged with lying to the grand jury. 

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Among the others charged was Jennica Duell, biological mother of the children who died and Safyre. She is serving 11 years in prison for her grand jury lies in the case.

Duell's defense unsuccessfully made similar coercion arguments before she finally pleaded guilty.

Fish's case, however, differs from Duell's in that Duell testified to the grand jury twice. She later recanted everything from the first trip, meaning one account was automatically a lie. Fish only testified once. He recanted outside of the grand jury, giving his defense more room to maneuver.

Their initial accounts said that Duell, Fish, Butler and a driver traveled to Schenectady from Saratoga Springs the morning of the fire and that Butler set it. 

Prosecutors will have a chance to respond to Rench's filings by the end of the month. A hearing has been set for June 13, the same morning as the trial is scheduled to begin.

In all, the fire claimed the lives of David Terry and his children Layah, 3; Michael, 2; and Donavan Duell, 11 months.

Safyre, who became the focus of a worldwide December 2015 Christmas card project, has been in the care of her aunt, Liz Dolder -- David Terry's sister -- since returning home from the hospital.

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