photo by: Nick Krug

Thomas S. Fritzel stands behind one of his attorneys, Thomas Lemon, as he leaves the Frank Carlson Federal Courthouse in Topeka on Tuesday, Aug. 14, 2018.

Though Lawrence developer Thomas Fritzel is facing years in prison for felony convictions related to illegal disposal of asbestos during a construction project, his defense attorneys are asking that a judge grant him probation instead.

In a sentencing memorandum filed Feb. 14 in U.S. District Court, Fritzel’s attorneys Thomas Lemon and Edward Novak argue in part that federal prosecutors failed to prove that the asbestos discharge was ongoing and repetitive in nature and thereby Fritzel’s crimes do not qualify for the approximately three-year sentence requested by federal prosecutors.

Fritzel was found to have violated the federal Clean Air Act and federal asbestos regulations related to asbestos disposal at the former Alvamar Country Club, now known as the Jayhawk Club. On July 30, a jury took about two hours to find Fritzel guilty on three counts related to the disposal of material containing asbestos, a hazardous material that has been linked to cancer, during remodeling work at Alvamar in 2016. Fritzel was found guilty of knowingly failing to notify environmental agencies prior to removing asbestos material, knowingly failing to wet asbestos before removing it from the construction site and knowingly failing to dispose of asbestos waste in leak-tight containers.

Instead of the sentence requested by federal prosecutors, the attorneys state that Fritzel should only be subject to a recommended sentence of 10 to 16 months under sentencing guidelines, and ask that the judge use her discretion to grant Fritzel probation based on the facts of the case. The attorneys go on to state in the memorandum that the sentence requested by federal prosecutors would create an “unwarranted sentencing disparity” with other defendants and that Fritzel does not represent a public threat.

“Moreover, such a sentence is neither needed to protect the public from further crimes by the Defendant nor to deter similar conduct,” the memorandum states. “Accordingly, the defense respectfully requests that the Court sentence the Defendant to a period of probation.”

Federal prosecutors argued that Fritzel submitted false samples to environmental regulators and that, even after being ordered to cease work, continued demolition of a building he knew contained asbestos, delivering truckloads of debris to a local landfill without taking any of the required steps to protect his renovation crew, the public or the environment from asbestos exposure. In a sentencing memorandum filed last month in U.S. District Court, federal prosecutor Richard Hathaway said Fritzel exhibited a cavalier willingness to deceive regulatory inspectors and a callous disregard for the health and safety of his crew and the public. Hathaway requested that the court sentence Fritzel to a prison term between 33 and 41 months and a fine between $15,000 and $150,000.

In their sentencing memorandum, Fritzel’s attorneys argue in part that that federal prosecutors only infer that the truckloads of debris contained asbestos, and therefore have failed to meet the burden of showing that Fritzel’s conduct was ongoing and repetitive in nature. The defense attorneys instead present an analysis, conducted by Dr. Kim Anderson at Fritzel’s request, that they say shows that Fritzel’s conduct created a “nearly infinitesimal risk of exposure.”

Novak did not provide any further comment about the sentencing request, saying in an email to the Journal-World that their position is stated in their pleading.

Fritzel is scheduled to be sentenced Thursday in the asbestos case. He is facing a maximum of seven years in federal prison and a fine of up to $500,000 in relation to the three asbestos disposal charges, according to a previous news release from the U.S. attorney’s office.

The asbestos case is a separate case from a felony fraud case against Fritzel. In that case, Fritzel was indicted on charges of scheming to collect more than $400,000 in fraudulent tax refunds from the City of Lawrence. That case was tentatively set to go to trial last month, but Fritzel pleaded guilty to the charges on Jan. 9. As part of the plea agreement, both parties agreed to recommend a sentence of 12 months and a day in federal prison and a fine of up to $250,000, as the Journal-World reported. Sentencing in that case is scheduled for May 4.