Defense wants Hillary DNA admitted as civil trial evidence

May 27—POTSDAM — Attorneys representing the village of Potsdam and three former and current Potsdam police officers want DNA evidence, which had been excluded from Oral "Nick" Hillary's 2016 murder trial, admitted in an upcoming civil trial.

Mr. Hillary, a former Clarkson University men's soccer coach, is suing the village over his treatment at the hands of the Potsdam Police Department during the investigation into the Oct. 24, 2011, murder of 12-year-old Garrett J. Phillips. Mr. Hillary was charged with the murder in May 2014 and acquitted after a three-week bench trial in September 2016. His attorney in the civil suit is Mani C. Tafari, of Melville.

Mr. Hillary alleges false arrest, unlawful search and seizure that included a strip search, and that police executed fraudulent search warrants on his home, car and cell phone. The defense will dispute that Mr. Hillary's arrest and strip search were based on probable cause, and that subsequent searches of Mr. Hillary's property were done with valid search warrants.

There are four defendants named in the lawsuit — Potsdam Police Chief Mark R. Murray, former Potsdam Police Chief Edward R. Tischler, Potsdam Police Lt. Michael P. Ames and the village of Potsdam. Their lawyers are Gregg T. Johnson and Hannah H. Hage of Clifton Park.

In the 2016 trial, Judge Felix J. Catena ruled the DNA evidence inadmissable on the grounds that the method of DNA testing, called TrueAllele, wasn't yet approved for use as evidence in New York state courts. The defense says Mr. Hillary's DNA matches with DNA recovered from the scene of Garrett's death.

The defense argues that TrueAllele can be used in New York state courts today. Although the constitutional double jeopardy prohibition means Mr. Hillary can't be retried for the murder, the defense argues the DNA evidence should be allowed in the civil trial.

"The DNA evidence was precluded from Plaintiffs (sic) criminal trial only on the basis that the method of obtaining the DNA match had not yet, at that time, been formally approved in New York State, which basis is no longer accurate nor valid," Ms. Hage writes in court documents. "Therefore, such evidence is undeniably relevant ... if the Plaintiff is permitted to assert his innocence or a lack of physical evidence."

Court documents show the defense wants to have Mr. Hillary's misdemeanor marijuana arrest from 23 years ago and alleged marijuana use at the time of Garrett's death admitted as part of their case.

"Consequently, excluding evidence of such arrest(s) would be unduly prejudicial to Defendants in that such exclusion could prevent the jury from hearing probative information that supported the Defendants' probable cause analysis at the time of Plaintiff's arrest on October 26, 2011," Ms. Hage writes in court documents.

A separate pre-trial motion filed by Mr. Tafari argues against four other requests from the defense.

One of those requests is that nothing should be admitted that happened after 3:46 p.m. on Oct. 26, 2011, when Potsdam police obtained a search warrant for Mr. Hillary's person.

"This attempt to restrict the jury from hearing about the defendants' conduct if it occurred past 3:46 p.m. should be denied by this Court as there is no basis to narrow this case down to a specific hour and minute given that this case has encompassed a time frame much broader than that since its inception," Mr. Tafari argues in court documents, adding, "the duration of his confinement would be relevant to liability and damages."

He also makes a case against a request from the defense that arguments of "race-based animus" shouldn't be allowed at trial.

"Plaintiff does not intend to litigate the Equal Protection Claims as they were dismissed in this Court's summary judgment decision. Plaintiff also does not intend to litigate the issue of race at trial," Mr. Tafari writes. "Nevertheless, defendants' broad request that the issue of race be precluded from trial should be denied. Plaintiff should not be prevented from bringing up the issue of race during the cross-examination of witness, if necessary and appropriate under the circumstances, since such an issue may be relevant for the jury to assess a witness's credibility."

The plaintiff side is also arguing against a defense request to preclude four witnesses from testifying who did not testify during Mr. Hillary's 2016 trial that ended in his acquittal. They are former St. Lawrence County District Attorney Nicole M. Duvé, New York State Police Investigator Gary Snell, Michael McDonnell (who is identified as a lead in Mr. Murray's notes from the investigation) and Brian A. Phillips, Garrett's uncle.

"These are all key witnesses known to defendants throughout the litigation who were disclosed by them through discovery," Mr. Tafari writes.

Finally, he argues against the defense's request to exclude potential jurors who have consumed any media coverage of the case.

When the investigation into Mr. Hillary started in 2011, Mr. Murray was an investigator with the Potsdam Police Department. He was promoted to chief in 2017. He is also a defendant in a separate lawsuit in which Mr. Hillary claims a violation of the Equal Protection Clause of the 14th Amendment, "retaliatory prosecution" in violation of the First Amendment, defamation, and conspiracy. The village is named in that lawsuit as well.

Mr. Hillary, a Black man, has contended that Mr. Murray called him the sole person suspected of the crime, while a "similarly situated" white man, John E. Jones Jr., was quickly dismissed as a suspect.

Mr. Hillary and Mr. Jones, a St. Lawrence County sheriff's deputy, had each previously been in a relationship with Garrett's mother. Mr. Hillary has contended that many of the reasons cited by Mr. Murray that made him a suspect similarly applied to Mr. Jones.

Here are some the events in question from over a decade ago, outlined in earlier court documents for the June 6 civil trial. Those documents say the following facts are not disputed.

The Potsdam Police Department's investigation into the Oct. 24, 2011, death, following an autopsy, turned into a homicide case. That night at 8:55 p.m., Mr. Murray requested a search or arrest warrant for Mr. Hillary, which was denied. Mr. Murray alleged in a later search warrant application that Mr. Hillary had a "significant limp" while coaching a Clarkson men's soccer game on Oct. 25, 2011. However, video footage confirms that he did not have a limp on that date.

On the morning of Oct. 26, 2011, Mr. Murray went to Mr. Hillary's home and asked him to come to the police station around 8 a.m. He was interviewed, detained and strip searched in Mr. Murray's office. Mr. Tischler later admitted that in the previous 20 years, no other individual, except Mr. Hillary, had ever been strip searched at the Potsdam police station.

Around 9 a.m., Mr. Hillary told Mr. Tischler that he would have to leave to go to work, but Mr. Tischler said he could not leave the station. Mr. Hillary was held at the Potsdam police station without a warrant while Garrett Phillips's family members came to the Potsdam police station to fill out affidavits which would later be used in support of a search warrant for Mr. Hillary.

While at the Potsdam police station, police seized Mr. Hillary's mobile phone and car, and investigators did not yet have search warrants for them. At the time of Mr. Hillary's detention, there were no eyewitnesses that identified him as a suspect, and no other suspects were interviewed. He also was not observed at any time at the scene of Garrett's death. There was no physical evidence admitted at the 2016 murder trial connecting Mr. Hillary to the crime.

The defendants allowed Mr. Jones, considered a suspect at the time, to aid in the investigation of Mr. Hillary before he was ruled out, court documents say.

Video evidence later excluded Mr. Jones as a suspect, who is seen on video walking his dog near Canton-Potsdam Hospital during the time police say the murder took place at the 100 Market St. apartment where Garrett lived.