photo by: Nick Krug

Thomas S. Fritzel leaves the Frank Carlson Federal Courthouse in Topeka, Kan. on Tuesday, Aug. 14, 2018.

A judge has denied Lawrence developer Thomas Fritzel’s motion for a new trial, rejecting Fritzel’s claims that the trial included insufficient evidence and improper procedure.

Fritzel’s defense attorneys Thomas Lemon, Ed Novak and Steve Six requested a new trial this summer following his felony conviction related to illegal asbestos disposal at the former Alvamar Country Club, now known as the Jayhawk Club. U.S. District Judge Holly Teeter recently issued an order denying the request for a new trial.

On July 30, a jury took about two hours to find Fritzel guilty on three counts related to the disposal of asbestos-containing material 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.

Fritzel’s motion for a new trial, filed Aug. 13, made five arguments: the government failed to prove all elements of each count beyond a reasonable doubt; the government elicited improper testimony; the court allowed improper expert testimony; the government filed the indictment to put pressure on Fritzel in an unrelated case; and the government engaged in prosecutorial misconduct resulting in an unfair trial. Federal prosecutor Richard Hathaway subsequently filed a response denying those claims. Teeter concludes in her order, issued Sept. 25, that none of the arguments made in the motion, singularly or in combination, warrant a new trial.

The motion claims that the government failed to provide sufficient evidence that the material removed from the Alvamar site was the kind of asbestos that becomes airborne or that Fritzel had knowingly failed to remove and dispose of the asbestos properly. Specifically, the motion states that the government did not offer a single witness to testify that he or she had crumbled, pulverized or reduced any of the asbestos sample by hand pressure to demonstrate that the sample met the definition of asbestos that could become airborne.

Teeter notes that multiple witnesses, sample tests and photographs indicated that the asbestos found at the Alvamar site was contained in a soft roofing material that would have become airborne given the demolition at the site. Specifically, she notes the testimony of two Kansas Department of Health and Environment employees, an asbestos lab analyst and sample tests from 2008 and 2016.

Regarding Fritzel’s knowledge of his crimes, the motion argues that the government failed to show that Fritzel knowingly disposed of the asbestos illegally. Teeter disagrees with that argument, stating that case law establishes that “the government need only prove that the defendant knew that the substance involved in the alleged violations was asbestos.” Teeter cites multiple communications about the 2008 sample that included Fritzel or his employees.

The motion also claims misconduct on the part of Hathaway, stating that he elicited improper testimony from former Alvamar golf course superintendent Richard Herries by asking questions that resulted in the relation of hearsay to the jury. The motion also claims that Hathaway engaged in misconduct by telling personal stories and referring to a health condition that required him to use a walking stick during the trial “in an attempt to gain sympathy” from the jury.

The hearsay statement occurred when Herries was testifying about an email he sent Jayhawk Club General Manager Wesley Lynch and Fritzel saying that he’d heard there was asbestos in the Alvamar clubhouse roof and wanted to make sure they were aware. Herries testified that Lynch called him into his office and told him that Fritzel said to never put anything like that in writing again. Teeter argued that neither Herries’ statements, Hathaway’s comments, nor the other points made in the motion resulted in an unfair trial. Fritzel previously filed a motion for acquittal, making some of the same claims, which Teeter also denied.

Fritzel, who previously posted a $50,000 bond, has remained on release pending his sentencing. On all three counts, Fritzel faces up to seven years in federal prison and a fine of up to $500,000, according to a news release from the U.S. attorney’s office.

Fritzel’s sentencing was originally scheduled for Nov. 13, but Fritzel’s defense attorneys recently requested a continuance, citing “additional work” that needed to be done and issues that needed to be resolved prior to the sentencing. Teeter approved the request earlier this month and the sentencing is now scheduled for Feb. 20, 2020.

The Journal-World asked Fritzel’s attorneys via email Monday whether they had any response to Teeter’s order denying a new trial or whether they could provide an explanation of the additional work or issues noted in the continuance motion. Novak did not provide any response other than to say they will file a sentencing memorandum in advance of sentencing.

Fritzel is also facing other charges in a separate federal case. In that case, Fritzel and his bookkeeper, Keela Lam, were indicted on charges of scheming to collect more than $400,000 in fraudulent tax refunds from the City of Lawrence. That case is tentatively set to go to trial in January 2020.