Both sides rest in Hillary lawsuit; closing statements set for Thursday

Jun. 9—ALBANY — Testimony concluded Wednesday afternoon in Oral "Nick" Hillary's civil lawsuit against Potsdam Police Chief Mark R. Murray and former chief Edward F. Tischler. Now that both sides have rested, the jury will hear closing statements and the judge's instructions Thursday morning, then begin deliberations.

Mr. Hillary, a former Clarkson University men's soccer coach, is suing Mr. Murray and Mr. Tischler over his detention and seizure of his cellphone by the Potsdam Police Department two days after the Oct. 24, 2011, murder of 12-year-old Garrett J. Phillips. Mr. Hillary had previously been in a relationship with the Garrett's mother, Tandy L. Cyrus, and lived with them for a time. He was charged with the boy's murder in May 2014 and acquitted after a three-week bench trial in September 2016.

Mr. Murray was an investigator with the Potsdam Police Department at the time, and Mr. Tischler was chief. Mr. Murray was promoted to chief in 2017.

Mr. Hillary is represented by Brett H. Klein of New York City and Mani C. Tafari of Melville. The defendants are represented by Gregg T. Johnson and Hannah H. Hage of Clifton Park. Judge Gary L. Sharpe is presiding over the case in U.S. District Court for the Northern District of New York, in the James T. Foley Courthouse in Albany.

If the jury finds Mr. Murray and Mr. Tischler liable for constitutional violations, the trial will go to a second phase of testimony and jury deliberations to determine damages.

After the plaintiff and defense rested, the attorneys and judge spoke for a half hour to settle some legal issues prior to jury deliberations.

Judge Sharpe asked the plaintiffs if they wanted to drop the claim over illegal seizure of Mr. Hillary's cellphone and limit the case to Mr. Hillary being detained at the Potsdam police station for six hours prior to the issuance of a warrant on Oct. 26, 2011.

"You do so at your own risk," the judge said to the plaintiffs of continuing with the claim of Mr. Hillary's cellphone being illegally seized. "You're not in a very good place."

Video evidence and testimony showed that on Oct. 26, 2011, while Mr. Hillary had been detained inside Mr. Murray's office, state police investigator Ray Plante confiscated the phone. It was logged as evidence with Potsdam police, but the judge said that fact isn't relevant to alleging a Fourth Amendment violation.

"To the extent that you argue about that phone, you diminish Mr. Hillary's detention," Judge Sharpe said.

Mr. Johnson spoke to the judge about what he described as a "circus-like atmosphere outside the courthouse." He was referring to Black Lives Matter Potsdam organizer Jennifer M. Baxtron, who has been holding a one-person protest outside the courthouse throughout the proceedings, which began Monday. The judge said she is able to protest as she pleases, as long as she doesn't bring her demonstration onto the courthouse steps or inside. On Wednesday, she was on the sidewalk holding a sign that said "Nick Hillary was framed."

Mr. Johnson accused her of "stalking" the jurors, who since Monday have been escorted in and out of a side door under a federal marshal's watch. On Monday, attorneys said she had attempted to hand "literature," handwritten on strips of paper, to the jurors.

"They might not know how to handle it," Mr. Johnson said, claiming that some jurors could be feel "intimidated."

He suggested the jurors be instructed that if Ms. Baxtron's protests were making them feel intimidated, they should report it to the court. Judge Sharpe said that could lead to a juror who makes such a claim being individually questioned by the court, which could lead to their removal from the jury "for cause." The judge said they need a minimum of six jurors to deliberate the case.

Earlier on Wednesday, Mr. Hillary took the stand. Mr. Klein asked him questions about his activities and whereabouts on Oct. 24, 2011.

Mr. Hillary, at the time the Clarkson men's soccer head coach, said the day started with reviewing footage from earlier soccer games to prepare for a match against SUNY Potsdam the following evening. At 4:40 p.m. on Oct. 24, Mr. Hillary said he went to Potsdam High School to watch an Ogdensburg-Potsdam high school boys soccer game for scouting purposes. He said he arrived, parked, but didn't leave his car and eventually drove away because a "torrential downpour started." He said that would affect the players because the soccer ball doesn't behave properly on a wet artificial turf field.

After that, Mr. Hillary stopped at the Garden Street apartment of Ian Fairlie, his assistant coach at the time. He said the two had a scheduled meeting with Jacob Duff, a Clarkson soccer player who had recently been injured. The purpose was to see if he'd be OK to play in their upcoming game against SUNY Potsdam. That contradicts Mr. Duff's statement he gave to police in which he claimed there was no meeting scheduled. Mr. Fairlie took the stand later on Wednesday and said there was a meeting scheduled, but they ended up speaking with Mr. Duff on the phone, which satisfied both he and Mr. Hillary.

After that, Mr. Hillary and Mr. Fairlie both testified they went to the Clarkson soccer field around the time of the murder, and kicked a soccer ball around before that night's scheduled practice.

Mr. Murray had testified earlier that he believed Mr. Hillary had killed Garrett and escaped by jumping out a second story window on a rainy day. Mr. Fairlie on the witness stand said Mr. Hillary did not appear injured, out of breath, muddy, wet or to have a leg or foot injury consistent with what police believe happened.

Mr. Hillary also offered testimony about his experience at the Potsdam police station with Mr. Murray and state police investigator Gary P. Snell on Oct. 26, 2011, the day the detention in question occurred. Mr. Murray said from the stand that Mr. Hillary had come across as deceptive when they interviewed him.

Mr. Hillary testified that he had voluntarily gone to the station under the belief he was helping Mr. Murray go through a list of Garrett's classmates to see if he recognized any of them, but became afraid when the tone of the encounter changed and they started asking him questions about the murder, and whether he may have been somehow involved.

"I was told I was free to go. When I tried to leave ... the door was barred" by Mr. Snell, who has since retired from the state police and is not a defendant in the lawsuit. "I became much more fearful," Mr. Hillary said.

Video evidence and testimony from Mr. Snell, not a member of the Potsdam police, showed that he initiated Mr. Hillary's detention. Judge Sharpe after the jury was excused said they will be tasked with deciding whether Mr. Murray and Mr. Tischler "adopted the decision by Mr. Snell to detain pending the search warrant."

On the tape from Mr. Murray's office, he tells Mr. Hillary he is free to leave right before Mr. Snell tells Mr. Hillary he's being detained.

Mr. Murray's testimony had started Tuesday and continued into Wednesday morning. Mr. Klein asked him questions aimed at discrediting sworn statements and depositions given to police in the hours and days after Garrett was killed that were used to support a search warrant for Mr. Hillary's person, home, car and office.

Garrett's uncle, Brian A. Phillips, had offered a statement saying he saw Mr. Hillary on Oct. 24, 2011, as Mr. Hillary headed onto Market Street near the former North Country Oil Change between 4:30 and 5 p.m. Mr. Klein also pointed to a portion of the statement in which Mr. Phillips said he was at his home in Parishville by 5 p.m.

Mr. Klein also brought up a statement from postal carrier Elise Gardner, who was Mr. Phillips's girlfriend at the time. She said she was on her route between 4:45 and 5:05 p.m. that day, which was near the crime scene at 100 Market St. and included nearby Walnut Street.

"She said she didn't see anything suspicious, doesn't recall seeing any vehicle in that area," Mr. Klein said. "She knew Garrett and she knew Nick, correct?"

"I don't know that," Mr. Murray answered, later adding, "I would assume, being in the (Phillips) household that she knew that."

Mr. Klein also asked Mr. Murray about a statement from Shannon Harris, a 100 Market St. neighbor who was changing a tire behind the building and told police she heard a sound like a screen ripping between 4:37 and 4:47 p.m. that day. Mr. Murray said it's "possible" that correlated to the screen being pushed out of the window from which police say the murderer escaped.

Mr. Klein also pointed to a statement from Caleb "Teddy" Rice, one of the last people to see Garrett alive, and his father Dale Rice. They told police they saw Mr. Hillary driving near the intersection of Leroy and Clinton streets sometime between 4:43 and 4:45 p.m.

"Do you agree Mr. Hillary cannot be in two places at once?" Mr. Klein asked. Before Mr. Murray could answer, Mr. Johnson objected and the judge sustained it.

Mr. Klein then asked Mr. Murray about the statement from 100 Market St. resident Marissa Vogel, who told police that at 4:45 p.m. she heard a loud thud and then a faint cry for help from the apartment Garrett shared with his mother and brother.

Ms. Cyrus briefly testified for the defense about her encounters with Mr. Hillary in the month before her son's death and statements she gave to the police the day after he died.

Mr. Johnson asked her if there was "any other individual who might have harbored any bad feelings toward your son, besides Nick Hillary," and if "anyone would want to hurt your son, besides Nick Hillary?" She answered "no" to both.

She also testified that she had considered changing the locks at the 100 Market St. apartment after she awoke about a month before the murder in the middle of the night to find Mr. Hillary standing in her bedroom. She said that was after her relationship with Mr. Hillary ended, but he kept a key to the apartment and later gave it back at her request. She later testified that he slept there for the night. Under cross-examination, Mr. Hillary testified that he made two copies of the key to Ms. Cyrus's apartment, but Mr. Johnson showed a receipt indicating he had three made.

Mr. Snell also testified about his involvement in the investigation.

"This was a Potsdam Police Department case," he said. "It wasn't a New York State Police operation. They didn't have total control over the investigation."

He added that he was not subject to Mr. Murray or Mr. Tischler's supervision. Mr. Snell also talked about how he believed Mr. Hillary was being deceptive while he and Mr. Murray interviewed Mr. Hillary at the Potsdam police station. Part of that included interviewing Caleb Rice and Carson Regan, two middle school students who were among the last people to see Garrett alive. Mr. Snell said they allowed him to check their legs, arms and abdomens, with their parents present, for injuries consistent with the crime scene and evidence collected. They observed none, Mr. Snell said.

Mr. Snell believed Mr. Hillary was hiding something when he wouldn't lift his pant legs to let he and Mr. Murray check his ankles later in Mr. Murray's office. However, Mr. Hillary had testified he didn't lift his pant legs because the conversation steered away from what he thought was the original intent, and he was feeling scared because there were two armed police officers sitting between him and the office door.

The trial resumes at 9 a.m. Thursday with the court finalizing jury instructions, followed by closing statements and jury deliberations.