Jury deliberations underway in Hillary lawsuit against Murray, Tischler

Jun. 10—ALBANY — Jury deliberations are underway in Oral "Nick" Hillary's lawsuit against ex-Potsdam Police Chief Edward F. Tischler and current Chief Mark R. Murray for alleged unlawful detention in violation of the Fourth Amendment.

Mr. Hillary, a former Clarkson University men's soccer coach, is suing the village over being detained by the Potsdam Police Department for six hours on Oct. 26, 2011, which was during the investigation into the murder of 12-year-old Garrett J. Phillips that happened two days earlier. Mr. Hillary had previously been in a relationship with the boy'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, Mr. Tischler and Mr. 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 in Albany.

Deliberations began shortly after noon Thursday. At 2:30 p.m., jurors asked to hear a recorded phone call and portions of two tapes from Mr. Murray's office on Oct. 25 and Oct. 26, 2011.

The phone call is between Daniel W. Manor Sr., then a St. Lawrence County district attorney's investigator, and Mr. Murray on the morning of Oct. 25, 2011. On the tape, the two discuss the investigation into Garrett's death, which had been going for about 12 hours at that point.

Mr. Murray can be heard saying they are focusing on one person, who he doesn't name. Mr. Manor later asks if Ms. Cyrus has a boyfriend, and Mr. Murray answers, "she did."

Mr. Manor says he heard that "a 12-year-old had been killed by his mother's boyfriend."

"That's the rumor," Mr. Murray answers.

On the Oct. 25 video from Mr. Murray's office, in the room are Mr. Murray, Mr. Manor, Ms. Cyrus, John E. Jones Jr. and Casey Collins. Mr. Jones is a St. Lawrence County sheriff's deputy and an ex-girlfriend of Ms. Cyrus. Mr. Collins is the father of Aaron Collins, who is Ms. Cyrus's son and Garrett's half brother.

Ms. Cyrus on the tape tells Mr. Murray about an incident with Mr. Hillary about a month prior. She says they had broken up, and she was living at the 100 Market St. apartment where the murder would later happen. She said she woke up about a month prior, at midnight, to Mr. Hillary being in her room without being invited. She testified from the witness stand that he spent the night and at her request, he gave back the copy of a key to the apartment he had used to let himself in. The defense argues Mr. Hillary having a copy of the key implies he may have had access to the murder scene a month later. They also say Mr. Hillary later lied to police about having had the key. Ms. Cyrus also tells investigators that Garrett and Mr. Hillary did not get along.

The Oct. 26, 2011, video from Mr. Murray's office shows him, Mr. Hillary and New York State Police investigator Gary P. Snell, who has since retired. During the 16 or so minutes the jury asked to view, Mr. Snell tells Mr. Hillary he's being detained pending a search warrant to photograph his body. Police say Garrett's killer jumped out of a second story window to escape the scene after neighbors called police and reported thudding noises and hearing the word "ow" or help" coming from the apartment Garrett shared with his mother and brother.

The attorneys offered closing statements earlier in the morning on Thursday, prior to the jury being sent to deliberate.

Mr. Johnson argued that police were reasonable in detaining Mr. Hillary, pending a judge approving a search warrant.

"The plaintiff hoped you'd pay attention to storylines and innuendo, rather than the evidence," he said.

He argued that a number of witness statements placed Mr. Hillary near the murder scene. Along with Ms. Cyrus's claims that their relationship hadn't ended well and that Mr. Hillary and Garrett didn't get along, and Mr. Hillary's behavior during the interview with Mr. Murray and Mr. Snell, he said that gave police probable cause to make the detention.

He said Mr. Hillary also lied about not having an injury to his leg, citing Mr. Hillary's deposition in a separate lawsuit he later filed against the village. In the transcript from that, Mr. Hillary says he had a leg injury at the time of the murder, a sprained ankle with swelling and an abrasion.

"He never shared that information with police," Mr. Johnson said.

Mr. Johnson also pointed to a portion of that tape where Mr. Murray asks Mr. Hillary what time he held Clarkson men's soccer practice the day of the murder, and Mr. Hillary replies, "no comment."

The defense attorney also argued that the detention of Mr. Hillary happened when Mr. Snell, seen on that tape in Mr. Murray's office, bars Mr. Hillary from leaving and tells him he's being detained.

Mr. Johnson also pointed to the crime scene, which he argues indicates the killer was familiar with Garrett, and shows no sign of forced entry or robbery. An autopsy of the boy confirmed there was no evidence of a sexual assault.

"This was a unique crime. This was a personal crime. An objective police officer walking through the scene ... would have reached those conclusions," Mr. Johnson said.

He also pointed to the Oct. 25, 2011, filmed interview with Ms. Cyrus, during which she made the claims about Mr. Hillary that raised investigators' suspicion of him.

"Garrett Phillips would have been the best witness. The second best witness was his mother," Mr. Johnson said during his closing statement.

Mr. Klein during his closing statement argued that police had other sworn statements that are an alibi for Mr. Hillary at the time the murder happened.

Caleb "Teddy" Rice, a classmate of Garrett's who was one of the last people to see him alive, and his father Dale Rice both gave statements saying they saw Mr. Hillary driving on Leroy Street between 4:43 and 4:45 p.m.

He pointed to a statement from Shannon Harris, a neighbor who was changing a tire behind 100 Market St. and told police she heard a noise that sounded like a screen ripping around 4:37 to 4:47 p.m.

"This provides an alibi that was known to Lt. Murray and Chief Tischler on the day of the crime," Mr. Klein said.

Brian A. Phillips, Garrett's uncle, told police he was on his way to pick up a prescription and saw Mr. Hillary driving toward Market Street near North Country Oil Change around the time of the murder. Mr. Klein pointed to a statement from Mr. Phillips's girlfriend at the time, postal carrier Elise Gardner, who said she saw Mr. Phillips on her postal route on Walnut Street at the time Mr. Phillips in his statement says he saw Mr. Hillary driving.

Mr. Klein also fired back against the defense claims that Mr. Hillary's detention was at the hands of state police, not Potsdam police.

"(Mr. Murray) was running the warrant. He was the lead (investigator)," Mr. Klein said.

Mr. Klein also argued that Mr. Tischler was "personally involved" in Mr. Hillary's detention. He pointed to testimony that indicated that he and Mr. Hillary spoke shortly after Mr. Snell said Mr. Hillary would be detained.

"When Mr. Hillary says 'I want to speak to Ed Tischler' ... what does Chief Tischler do? He approved, he ratified (the detention)," Mr. Klein said. "He tells Nick, 'You're not going anywhere.'"

The jury has been instructed that because Mr. Tischler as chief was an official village policymaker, the village may also be held liable.

Jury deliberations resume at 9 a.m. Friday.