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Prosecution seeks 9 years in arson perjury case

Prosecution seeks 9 years in arson perjury case

Man's false testimony helped spur arrest, jail time for now-cleared suspect
Prosecution seeks 9 years in arson perjury case
Schenectady firefighters battle a blaze at 428 Hulett St. on May 2, 2013, in Schenectady.
Photographer: Peter R. Barber

SCHENECTADY -- The last of four people convicted of perjury related to a fatal 2013 Hulett Street fire should spend nine years in prison, federal prosecutors argue in a new court filing.

Bryan Fish is to be sentenced next month on two counts of perjury related to the arson case. He admitted in May that he lied about who was driving a vehicle in an early account of how the May 2013 fire was started, killing three children and their father. The fire also maimed then-5-year-old Safyre Terry.

Assistant U.S. Attorney Wayne Myers filed the document that outlines the nine-year recommendation. He argues that Fish repeated the initial account "for weeks on end," before he recanted and denied any involvement in the fire.

The perjury proceedings focus on Fish's grand jury testimony, in which he falsely said his brother drove the vehicle that carried Fish, Duel and another man to the home the night of the fire.

"The Court need not decide whether to to credit the defendant's incriminating or self-serving narrative: regardless of where the truth lies, there is no question that the defendant's false statements were intended to thwart the investigation into the arson and have done so to date."

Fish's false account, along with that of another defendant, Jennica Duell, helped lead to federal arson charges against Robert Butler, then 27, in connection with the fire. Butler spent nine months in custody before prosecutors dropped the charges and freed him, as another suspect, Edward Leon, emerged.

Leon was convicted of lying to the grand jury and is serving 10 years in prison. He is appealing his conviction.

Duell -- the biological mother of the children who were in the home at the time of the fire -- pleaded guilty to lying when she said Butler started the fire. She is serving 11 years in prison.

A third man, Richard Ramsey, admitted earlier this year that he gave two false stories to the grand jury about providing the car that was driven to the scene of the fire the night of the blaze. Ramsey was sentenced to seven years, three months in prison. Prosecutors also asked for nine years in Ramsey's case.

Butler has since sued investigators for false arrest and malicious prosecution. That suit is pending.

No one has been charged with setting the fire.

Fish's sentencing is set for Dec. 6, though his attorney, Frederick Rench, has asked to delay that to later in the month so he can properly file his own sentencing recommendation and memorandum, citing the "complexity of the issues" in the case. Fish was indicted in October 2016.

The May plea agreement, however, included a suggested five-year sentence for Fish. That deal allows him to appeal any sentence longer than five years.

Fish's case is unique among the others, in that Duell, Ramsey and Leon each initially testified, then recanted in later testimony. Fish never recanted in court.

Prior to Fish's guilty plea, Rench argued his client recanted the false testimony within 11 days, and that contradictory testimony offered by another figure in the case minimized the impact of Fish's falsehood on the grand jury proceedings as a whole.

Rench also gave notice that the defense intended to call an expert in the field of false memory to the stand, had the case gone to trial. That expert would have commented on video of the police interrogation of Fish.

In all, the fire claimed the lives of David Terry and his children Layah Terry, 3; Michael Terry, 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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