Berry, 40, was accused of giving $500 to James D. Williams III to set the fire. Williams, convicted of murder and other charges, hanged himself June 10 in his cell at Lebanon Correctional Institution.
Berry’s attorney, Scott M. Calaway, filed a motion to dismiss on July 1.
“This remains an open and active homicide investigation. It is our hope that additional evidence or witnesses become available in order to hold those responsible for the death of Robert Fabia accountable,” said Montgomery County Prosecutor’s Office spokesman Greg Flannagan.
Montgomery County Common Pleas Judge Mary L. Wiseman said the charges were dismissed “without prejudice,” meaning they could be filed again.
Wiseman also said Berry would likely be released from the Montgomery County Jail later Friday.
The Aug. 26, 2008 fire at the Club Ivy, 3509 N. Main St., killed Fabia, the club’s chef. Fabia, 50, sometimes slept on a couch in a back office .
In his motion to dismiss, Calaway wrote that Williams’ testimony “is essential to satisfy the elements and the burden of proof for the state of Ohio. Without the testimony of Mr. Williams, the state cannot put forth a prima-facia case.”
On Friday, prosecutors withdrew the charges against Berry, also known as Anthony Blakely, including three counts of aggravated arson, three counts of murder and one count of arson.
Under law, Berry has the right to question all witnesses who testify against him. Ohio evidence rules offer some ways to use statements of a dead person, but Calaway wrote that the prosecutor would have to show that “Mr. Williams’ inability to testify was the result of the actions of Mr. Berry,” and that all indications are that Williams committed suicide.
Williams family said in late June that Williams, 29, lived in constant fear from the time he entered prison in September. When Williams arrived at Lebanon, he found that a close relative of Berry’s was in the same cell block, and the threats started immediately, said his father, James D. Williams, II.
Prison officials moved Williams to a new cell block, but kept him in the same prison. During the six months prior to his death, Williams refused to leave his cell during recreation time, fearing attack , his family said.
Doyle Burke, chief investigator for the Warren County Coroner’s Office, said the office was awaiting the results of toxicology tests, but did not expect to find anything.
A surveillance camera outside of Williams’ cell showed him go into the cell alone during recreation time. Later, it showed his cellmate go into the cell, and immediately leave to find help, Burke said.
Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction, said that, had Williams reported any threats, there would have been a protective custody investigation to see whether he needed to be permanently removed from the situation.
Contact this reporter at (937) 225-2057 or lgrieco@DaytonDailyNews.com.
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