Fitzwater & Aiken Prelim Hearing  04

Cory Fitzwater, right, leans over to speak with his attorney Jonathan Hanks during a preliminary hearing for himself and Dalton Aiken on Wednesday, Dec. 12, 2018, at Ogden's 2nd District Court.

OGDEN — A murder defendant’s contention that he should be released from jail because of his compromised immune system and the threat of COVID-19 has been rejected by an Ogden judge.

After arguments in 2nd District Court on Monday, Judge Camille Neider denied Cory Fitzwater’s bid for freedom pending trial, at least for now.

Defense attorney Randall Richards said the pandemic’s escalated risks in close populations such as jails represent a “material change in circumstances” warranting a new look at his bail status.

Fitzwater, 36, of Hooper, has been held in the Weber County Jail most of the time since his arrest in the Aug. 16, 2018, slaying of Brian Racine in a 21st Street Pond homeless camp.

“Given his unidentified open sores, his infected rectal fistula and his chronic sleep deprivation, Mr. Fitzwater is considered an immuno-compromised individual, and is at higher risk of infection and suffering severe illness from COVID-19,” Richards argued in court documents.

“Continuing to keep him confined at the Weber County Jail, where he is in close, constant contact with scores of strangers each day, and where he is denied access to necessary medication and medical treatment,” is an unjust threat to his life, Richards asserted.

But the Weber County Attorney’s Office fought the release request, saying Richards’ claims about Fitzwater’s medical problems and coronavirus risks in jails “appear to be supported only by internet articles.”

“Indeed, none of the medical issues claimed by the defendant are associated with or make him particularly vulnerable to a respiratory illness,” deputy county attorney Sean Brian wrote in his response to Richards’ motion. “Rather, the issue is gastrointestinal.”

Respiratory symptoms are one of the hallmarks of COVID-19.

Brian said the release request ignored other potential solutions, such as a medical furlough. In his response to that, Richards said he would agree to a medical furlough as an alternative to bail release.

Brian noted that Fitzwater’s co-defendant, Dalton Aiken, was convicted on similar evidence and is serving 16 years to life in prison.

“This not only establishes the quality of the evidence, but also connotes a flight risk — a defendant is more likely to flee knowing the high likelihood of conviction on such a serious charge,” Brian said.

Neider denied the release motion after saying previous rulings on Fitzwater’s bail status still applied and that she had not received verification of his medical conditions.

Neider scheduled Fitzwater’s trial to begin Aug. 4.

In other pretrial actions, Richards and the county attorneys have been sparring over who can wear medals and ribbons in court during the trial.

The court earlier ruled that Fitzwater, an Army veteran, could not address his military service or wear medals and ribbons awarded to him.

Richards followed up with a motion asking the court to prohibit police testifying in the trial from talking about their training and experience and wearing medals, ribbons and adornments on their uniforms.

“The same improper end — playing to the sympathies of the jury — would be served by permitting the officers to testify while adorned in their service medals, ribbons, and other tokens of their achievements,” Richards said, while Fitzwater “is forced to sit in plain clothes and has been ordered to not display his own service awards and decorations.”

But deputy county attorney Stephen Starr called that argument flawed, because Fitzwater’s military record had nothing to do with the shooting.

Fitzwater, he said, “had been medically retired from the military when he allegedly shot Mr. Racine in the head. There simply is no correlation between defendant’s military service and his criminal conduct.”

In contrast, Starr said, it is presumed that any medals or ribbons a police officer wears on their uniform were awarded while performing their official duties.

“If the police officer is allowed to wear his uniform at trial, then he or she should be allowed to wear any and all medals, ribbons, and accolades awarded, as those awards are now part of his or her official uniform,” Starr said.

You can reach reporter Mark Shenefelt at or 801 625-4224. Follow him on Twitter at @mshenefelt.

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