Hillary lawsuit underway; former police chief testifies after openings

Jun. 7—ALBANY — Jurors in Oral "Nick" Hillary's civil trial against the village of Potsdam on Monday heard opening statements and testimony from the first witness, former Potsdam Police Chief Edward F. Tischler.

Mr. Hillary, a former Clarkson University men's soccer coach, is suing the village over alleged Fourth Amendment violations, illegal search and seizure, 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. He is represented by Brett H. Klein, a civil rights attorney from New York City, and Mani C. Tafari of Melville. The plaintiffs, Mr. Tischler and current Potsdam Police Chief Mark R. Murray, 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.

Earlier court documents identified Potsdam Police Lt. Michael P. Ames as a defendant. At the start of Monday's proceedings, he was seated at the defense table, but left the table in the first hour. Judge Sharpe said that Mr. Ames is not a defendant, but may be called as a witness.

Mr. Klein in his opening statement said the jury's job is, after 10 years of litigation, to "finally provide healing for Nick Hillary and hold the defendants liable for the harm they caused."

He alleged that during the first hours and days of the investigation, police zeroed in on Mr. Hillary as a suspect to the exclusion of other possible suspects. He said that's because the family of Mr. Hillary's ex-girlfriend, Tandy Collins, didn't like him and had close ties to Potsdam and state police. At the time of Garrett's death, Ms. Collins was going by the name Tandy L. Cyrus.

"This myopic focus on one person led to what became the wrongs in this case," Mr. Klein said. Later on, Judge Sharpe admonished Mr. Klein. The judge said "whether [police] focused on anybody else has nothing to do with the detention of Mr. Hillary or seizure of the phone."

Also during the direct examination, Mr. Klein and the judge sparred several times over questions the attorney asked that the judge said got into explaining the law as it pertains to the Fourth Amendment, often following objections from Mr. Johnson. Judge Sharpe said explaining the law to the jury is his role, after both sides have rested their cases, and the jurors prepare to go into deliberations about whether or not Mr. Hillary's Fourth Amendment rights were violated.

Mr. Klein in his opening statement said while Mr. Hillary was being questioned at the Potsdam police station on Oct. 26, 2011, the police violated his civil rights when he "does what they least expect and said 'I want to call my attorney.'"

"They continue to press him," Mr. Klein said. "That was wrong, and the evidence will show that."

He also alleges that the seizure of Mr. Hillary's cell phone during that time was "without justification."

Mr. Klein attacked Mr. Murray's position during the time in question a decade ago — that Mr. Hillary had a limp during a Clarkson soccer game shortly after the murder. Mr. Murray and other police officers went to the game and filmed Mr. Hillary on the sideline. Mr. Klein said there's no limp on that video.

Police believe the person who killed Garrett escaped the 100 Market St. second story apartment by jumping out of a window, landing on a shed, and then jumping to the ground where police say they observed a divot in the earth. Mr. Tishler later testified that police didn't have evidence that the person who would have jumped was Mr. Hillary, who is Black, and they also didn't have evidence that a Black person was seen jumping from the window.

During Mr. Tischler's direct examination, he testified that the video was a major piece of evidence in the case. However, when asked if there is a video that shows Mr. Hillary with a limp, Mr. Tischler said he can't answer the question without reviewing the video.

"You'll see [Mr. Hillary] on an Oct. 26 [2011] video where he's in custody for hours. No limp," Mr. Klein said during opening statements.

"The defendants' explanations are like ... throwing sand in a referee's face so he/she can't make a call," he said toward the end of the opening statement.

Mr. Johnson contends that on the date in question, Mr. Hillary had voluntarily turned himself over to Potsdam police after being asked to come down to the police station and look over a list of kids who had had contact with Garrett Phillips. During that time, he was interviewed in Mr. Murray's office with officers present that included state police Investigator Gary Snell. Mr. Johnson said that at that time, state police personnel were part of a joint investigation with village police and not under Mr. Tischler's control. The former chief also stuck to that position during his examination by Mr. Klein.

"The person who confiscated [Mr. Hillary's cell phone] is a New York State Police trooper who for some reason they didn't sue," he said.

Under direct examination, Mr. Tischler testified that after the phone was seized, it was "vouchered," or logged as evidence, in the Potsdam police department's system.

Mr. Johnson during his opening said the defense's position is that police did have enough evidence and reasons to believe Mr. Hillary was somehow involved in the homicide.

"There was evidence Mr. Hillary had access to the apartment," he said.

Ms. Collins has told police and later testified at the 2016 murder trial that Mr. Hillary, her ex-boyfriend, had a key to the apartment but had given it back before the murder happened. He also said there was testimony that Garrett and Mr. Hillary didn't get along while he and Ms. Collins were still dating. The relationship ended because Garrett and his younger brother, Aaron, didn't like living in the same household as Mr. Hillary because he was a strict disciplinarian.

Mr. Johnson also said that Mr. Hillary was "near the scene" on Oct. 24, 2011, the date of the murder. He also alleged Mr. Hillary "had repeatedly deceived and lied to police" in the hours and days after that date.

Following the opening statements, Mr. Tischler took the stand. He was initially examined by the plaintiffs. During that examination, Mr. Klein attempted to show video from inside the Potsdam police station on Oct. 25 and 26, 2011. The AV equipment at first didn't work.

Shortly after, while a video taken inside Mr. Murray's office on Oct. 25, 2011 was playing, and the system suddenly crashed. The testimony then went into cross-examination for the rest of the day, and will go back to direct examination on Tuesday when court personnel get the AV equipment back in order.

The two sides also sparred over during Mr. Hillary's detention when he was allowed to smoke cigarettes in the kitchen area of the Potsdam police station. Mr. Tischler said Mr. Hillary tried to stuff cigarette butts down the kitchen sink, but Mr. Klein asked if he was just being tidy. Mr. Tischler said he didn't think that's a normal method to dispose of a cigarette butt and believes he was trying to hide DNA evidence. Mr. Klein then asked if Mr. Hillary attempted to destroy a cup he used to drink coffee in the police station, and the former police chief said he wasn't sure.

During cross-examination, Mr. Tischler testified that police bought a pizza so Mr. Hillary could eat while detained, and he "had his attorney Jane Garland eat the crust." He believes that was indicative of trying to hide DNA evidence.

The day's testimony ended with Mr. Tischler being asked to look at the lead log that police maintained. It was to record all the tips that may have been helpful to investigators, and when and how it was received. After the jury was excused, the attorneys and judge had a brief debate over whether it had been properly redacted.

While the case was happening, Black Lives Matter Potsdam organizer Jennifer M. Baxtron was protesting on the sidewalk outside the building. She says she was there to advocate for justice for Mr. Hillary and Garrett Phillips. She also said she wanted to bring attention to the January 2021 death of her son, Terron R. Evans Jr., which was ruled a suicide. She believes he was murdered.

Judge Sharpe at the end of the day on Monday after jurors were excused told the attorneys about "the problem with the gal out front." He said Ms. Baxtron "accosted" jurors during noon recess by "talking about Black Lives Matter" and offering the jurors literature with her opinions of Mr. Hillary's case and her son's death. Because of that, the jury is now being escorted by federal marshals out of a side door in the courthouse.

However, the judge said she has the right to protest and air opinions, as long as it's on the sidewalk outside of the courthouse. Mr. Johnson alleged that Ms. Baxtron "accosted my clients." Outside the courthouse, Ms. Baxtron said what she said to the defendants and Mr. Ames was a call for police accountability.

The case resumes at 9 a.m. Tuesday with more testimony from Mr. Tischler.