Updated: 02/09/2014 1:52 AM
Created: 02/09/2014 1:40 AM WNYT.com
By: Steve Flamisch
SCHENECTADY – It was "unusual" for the U.S. Attorney’s office to release the man charged with setting a house fire that killed a father and his three young children, a legal expert told NewsChannel 13.
Robert Butler, of Saratoga Springs, walked free after federal prosecutors dismissed the criminal complaint against him on Friday. The order cited the need for "further investigation," and the possibility exists that Butler could be charged again.
"It says to me that they're troubled by aspects of this case," legal expert Paul DerOhannesian said. "They're troubled with the evidence in this case. And that the sworn allegations in the original charge in this case are not necessarily accurate and correct."
The fire at 438 Hulett St. on May 2, 2013 killed David Terry, 32, and his three young children, Michael Terry, 3, Layah Terry, 2, and Donovan Duell, 11 months. A fourth child, Sa’fyre Terry, now 6, suffered severe burns and remains in the hospital, her family said.
One month later, federal prosecutors brought the arson charge against Butler, who used to date the children’s mother, Jennica Duell. Butler was facing a maximum punishment of life in prison or the death penalty if convicted.
A judge twice granted federal prosecutors an extension to secure a grand jury indictment against Butler. Then, with a Monday deadline fast approaching, prosecutors dismissed the charge, allowing Butler to go free.
"The gravity of the crime and the potential punishments, the unusual and complex facts, including information regarding the involvement of others, and the circumstances regarding eyewitnesses, necessitate further investigation," First Assistant U.S. Attorney Grant Jaquith wrote.
Tim Austin, the assistant federal public defender who is representing Butler, said video from a city surveillance camera shows that someone else was at the house that night. He declined to say who it is, or specifically what the video shows that person doing.
"Undisputable video evidence shows that somebody else was there to do the crime," Austin said. "We think that the evidence establishes unequivocally that (Butler) is innocent, and that another person is responsible for the crime."
The Times Union, citing people with knowledge of the investigation, reported that the man seen in the video allegedly sent more than 100 text messages to David Terry’s cell phone, including one in which he threatened to kill Terry.
Terry’s friend, Will Rankin, told NewsChannel 13 that he was "very disappointed" in the U.S. Attorney’s decision to release Butler. Jennica Duell, the children’s mother, declined to comment on Butler’s release, saying only that "everything will come out in the end."
The judge dismissed the charge against Butler without prejudice, meaning that federal prosecutors could bring new charges against him. They could also seek to charge the person allegedly seen in the video, or both, or neither.
"I think they may believe they may be able to make a case here, perhaps against someone else," DerOhannesian, the legal expert, said. "Perhaps this individual Butler is connected to it. But right now, they've got too many questions to feel comfortable seeking an indictment."
Citing the ongoing investigation, a spokesman for the U.S. Attorney’s office decline to elaborate on the reasons for dismissing the complaint. Austin, the assistant federal public defender, declined to make Butler available for comment.