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No new trial date yet 3 years after homeless man’s shooting death in Ogden

By Mark Shenefelt - | Sep 7, 2021

MATT HERP, Standard-Examiner file photo

Cory Fitzwater makes his way into the courtroom for a preliminary hearing for himself and Dalton Aiken on Wednesday, Dec. 12, 2018, at Ogden's 2nd District Court.

OGDEN — It’s been more than three years since Brian Racine, 28, was shot to death in an Ogden homeless camp, and a suspect’s trial has been postponed yet again.

It now will be well into 2022 before Cory Fitzwater goes before a jury.

Police said Fitzwater and a co-defendant, Dalton Aiken, went to a wooded area around the 20th Street Pond on Aug. 16, 2018, to intimidate homeless people. The two defendants’ trials were separated, Aiken was convicted and he is serving a prison term.

Since then, trial has been scheduled and canceled for Fitzwater at least four times. The latest request came this summer from the Weber County Attorney’s Office after Dee Smith, a top prosecutor, died suddenly in June.

A motion to scratch the scheduled Sept. 9-22 trial said the attorney’s office did not have time to prepare for the trial after Smith died and another prosecutor had gone to work for another county and was being considered for a judgeship.

Randall Richards, Fitzwater’s attorney, said in response that they would agree to the postponement if authorities would release Fitzwater from jail pending trial, supervising his movements via an ankle monitor.

Otherwise, Richards said, they opposed the delay on the grounds that Fitzwater’s constitutional right to a speedy trial has been violated.

The county attorney’s office argued it could not be ready for a September trial because they needed to get new attorneys up to speed. Richards countered that four prosecutors had been working on the case and two were left, while Fitzwater has had just one all along.

Fitzwater’s trial originally was set to begin Nov. 6, 2019, but was postponed because attorneys wanted more time to prepare expert witnesses. COVID-19 delays knocked out two scheduled trial dates in summer 2020 and February 2021.

Richards said the defense understands the two COVID postponements were necessary, but they “nevertheless kept the defendant in jail for an additional 18 months. The defendant had nothing to do with the situations that have arisen within the last two months, and therefore this delay would be solely on the prosecution and violative of the defendant’s Sixth Amendment protections.”

After a hearing July 26, 2nd District Judge Camille Neider canceled the September trial and set a new scheduling hearing for Sept. 27.

Fitzwater, 38, remains held without bail at the Weber County Jail.

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