Potsdam police chief testifies in Hillary lawsuit

Jun. 8—ALBANY — Potsdam Police Chief Mark R. Murray spent most of Tuesday on the witness stand in Oral "Nick" Hillary's lawsuit against the current chief and former Chief Edward F. Tischler.

Mr. Hillary, a former Clarkson University men's soccer coach, is suing the village over alleged 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 had previously been in a relationship with the boy's mother, Tandy L. Collins, 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. He 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.

Mr. Murray's testimony later in the day went into statements and depositions supporting a warrant to search Mr. Hillary's person, home, office, car and phone. His testimony began with Mr. Klein asking him about a tape from inside Mr. Murray's office at the Potsdam police station on the morning of Oct. 26, 2011 with Mr. Hillary and New York State Police Investigator Gary Snell.

The interview started with Mr. Hillary voluntarily coming to the station because Mr. Murray had asked if he'd would review a list of Garrett's classmates.

Mr. Murray said the interview started out with "trying to build a rapport with Nick." He believes on the tape, Mr. Hillary appears to "not be engaging." Shortly after that, Mr. Snell enters the office and Mr. Murray said Mr. Hillary did not need his Miranda rights read.

"Miranda applies to custodial detention. He's not in custody at this point," Mr. Murray testified.

Part of the interview up to that point was small talk, some of it about soccer, which Mr. Murray also played.

"I was playing to his ego, hopes and dreams, trying to get him to say anything," Mr. Murray testified, and still "trying to build a rapport."

At the 9:24 a.m. timestamp on the tape, Mr. Snell reads Mr. Hillary his Miranda rights.

"Only as our policies go, I'm going to read you your rights," he says. "You're not under arrest."

Mr. Klein asked Mr. Murray on the witness stand why Mr. Snell did that, and Mr. Murray replied, "I'm not 100% sure why Officer Snell is reading the Miranda rights."

The plaintiff attorney asked what scenarios would trigger a Miranda warning. Mr. Murray said that could be "so possible probative statements aren't suppressed in court."

Also on the tape, Mr. Murray tells Mr. Hillary that "Garrett made some comments before he expired" at Canton-Potsdam Hospital on the night of Oct. 24, 2011. Later on, answering a question from Mr. Klein, Mr. Murray said that the 12-year-old did not say anything after police found him unresponsive and unconscious.

Later on in the tape, some of the conversation takes on racial overtones. Mr. Murray told Mr. Hillary, "I'm the least racist person" and said "we do live in a redneck community. People know your car." At the time, he was telling Mr. Hillary that there are witnesses who saw him driving his car near the murder scene around the time it happened.

Mr. Klein asked Mr. Murray about the "redneck community." Mr. Murray said it represents "the factual demographic actualities" of the area. He also made a comment about Canton and Potsdam being "the center of our diversity" because of the four colleges.

"Did you say to Nick, "there are bad people from the city and you're not one of them?'" Mr. Klein asked. "What did you mean?"

"I was trying to get him to say anything," Mr. Murray said.

Mr. Klein and Judge Sharpe continued to butt heads on Tuesday over Mr. Klein asking questions that were possibly geared at getting Mr. Tischler and then later Mr. Murray to make statements about the facts of the law. The judge said that's his role at the end of the trial — to instruct the jury about the law and how applies. They then decide if Mr. Murray and Mr. Tischler are liable for not meeting the legal standard for search and seizure. At the end of the day, after the jurors were excused, the judge admonished Mr. Klein and he agreed with the judge's boundaries.

"The only issue of this trial is we've got a detention pending receipt of a search warrant and seizure of a cell phone. What facts were in the collective knowledge of police prior to the actions they took? What was the personal involvement of those defendants?" the judge said, also adding, "who killed Garrett Phillips is irrelevant."

He also said the reasons why police focused on Mr. Hillary as suspect in the early days of the investigation is not on trial.

"I don't care if they focused on Mr. Hillary because he's a martian," the judge said. "Do the facts objectively support what the police did?"

Returning to the Oct. 26, 2011 tape from Mr. Murray's office, he at one point tells Mr. Hillary that he can leave if he wants to. Later, under further direct examination, Mr. Klein asks why Mr. Murray said that.

"Mounting frustration" that Mr. Hillary wouldn't answer certain questions, such as the time of Clarkson men's soccer practice on the night Garrett Phillips died, he said. "I said, 'Sure, leave' ... I wasn't thinking about his detention at that point."

"Did you mean it?" Mr. Klein asked.

"Yes," Mr. Murray replied.

Later on in the recording, Mr. Snell tells Mr. Hillary he's "being detained here."

"We're going to apply for a search warrant to photograph your body," he says. "Put your phone down, shut it off, and be helpful with me."

Up until that point, Mr. Hillary had been attempting to reach a lawyer. Local attorney Jane Garland ended up going to the police station on his behalf. Mr. Hillary was also trying to reach Mr. Tafari.

After that, state police Inv. Ray Plante enters the room and demands Mr. Hillary's cell phone while he's on the phone with Mr. Tafari. "You've called your lawyer," Mr. Plante says. "Give me the phone."

Mr. Hillary turns over his phone, but asks for it back. Mr. Plante refuses.

The plaintiff council also asked Mr. Murray about what happened during and after the seizure of Mr. Hillary's cell phone.

He said they had to wait for state police forensic investigators to bring a device "to forensically and prepare to download data for case evidence," adding that this happened after the search warrant for the phone was issued. The warrant wasn't issued until after Oct. 26, 2011. He didn't give a specific date.

"We (Potsdam police) maintained custody of all evidence in this case," he said, adding that he gave Mr. Hillary a receipt for the seized property.

Mr. Murray also made supporting reference to a video he and three state troopers filmed without Mr. Hillary's knowledge while he coached a soccer game on Oct. 25, 2011. He believes the tape shows Mr. Hillary with a limp. Court documents filed prior to the lawsuit say there's not a limp visible. Mr. Klein attempted to introduce the tape as evidence and show it for the jury while Mr. Murray was on the stand. He did not allow the tape to be published because, the judge said, the lawyer hadn't properly followed procedure for laying a foundation before introducing evidence. Mr. Johnson cross-examined Mr. Murray and went through about a dozen witness statements and depositions used to support the search warrant.

He said at the time of the investigation, witness statements to him indicated that Mr. Hillary knew more about the homicide than he was letting on. One came from Marissa Vogel, the neighbor who initially called 911 after hearing a thud come from the apartment where Garrett lived. Mr. Murray said she was able to verify that no one entered or left the apartment through the front door after the call.

Shannon Harris, a neighbor, told police she was behind 100 Market St. She told police she heard "noises that sounded like a screen ripping" coming from the second-floor window where police say the killer escaped, but didn't see anyone jump out of the window.

Two Potsdam EMTs told police about the abrasions, bruises and neck injuries they observed on Garrett's body after responding to the scene, "pointing to possibly he was strangled or choked," Mr. Murray testified.

Brian A. Phillips, Garrett's uncle, claimed in a statement he saw Mr. Hillary driving his car near the murder scene around when the killing happened. He told police he was going north on Market Street to pick up a prescription and said he saw Mr. Hillary's vehicle coming onto Market Street from Grove Street. Mr. Phillips started the "Justice for Garrett" campaign that raised reward money for information leading to the killer's arrest and ended after the 2016 trial.

Ian P. Fairlie, Mr. Hillary's assistant Clarkson soccer coach, started as Mr. Hillary's alibi, but Mr. Murray said he later became a witness. Mr. Murray said it's only about a 200-yard walk through a blazed footpath from 100 Market St. to Waverly Street, which also leads to Mr. Fairlie's 16 Garden St. apartment at the time. During the 2016 murder trial, Mr. Fairlie testified that Mr. Hillary was at his house around when the murder happened.

Dale A. Rice, the father of Teddy Rice, one of the last people to see Garrett alive, said he saw Mr. Hillary around the time of the murder turning from Leroy Street onto Garden Street. Mr. Murray said that was "the best eyewitness we had at the time."

Jacob Duff, at the time a Clarkson student soccer player on Mr. Hillary's team, told police a meeting that Mr. Hillary had told police took place between the two around the time of the murder never actually happened.

Ms. Collins told police about a time about a month before her son's murder that Mr. Hillary showed up at her apartment one morning without being invited, after they had broken up and she'd asked for space. Mr. Murray believes that story "showed [Mr. Hillary] was being deceitful ... he had full access to the apartment whenever he pleased." Earlier testimony included a claim from Ms. Collins where weeks before the murder, while they were broken up, she awoke one night around midnight to Mr. Hillary standing in her room, claiming he was there to "go to sleep." In a 2014 deposition Ms. Collins gave in a separate lawsuit Mr. Hillary filed against the village, she said he ended up sleeping there that night. She also said he later gave back his key to her residence.

Tonya Cyrus, Ms. Collins's sister, said Mr. Hillary called her asking her to help him work things out with Ms. Collins. Joseph L. Paul and Janet M. Paul both working as Clarkson custodians at the time, in statements said Mr. Hillary asked for them to help him get back together with Ms. Collins and said Mr. Hillary had blamed Garrett for the relationship ending. Later, Mr. Murray testified police became aware of several relationships he had after the one with Ms. Collins.

The trial resumes on Wednesday morning with more testimony from Mr. Murray.