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D.A. to convene new grand jury to try and re-indict man accused in 2011 slaying of Potsdam boy

Posted 11/13/14

Updated Nov.14, 12:10 p.m. District Attorney Mary Rain says she will attempt to re-indict Oral "Nick" Hillary, the former Clarkson soccer coach accused of murdering 12-year-old Garrett Phillips in …

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D.A. to convene new grand jury to try and re-indict man accused in 2011 slaying of Potsdam boy

Posted

Updated Nov.14, 12:10 p.m.

District Attorney Mary Rain says she will attempt to re-indict Oral "Nick" Hillary, the former Clarkson soccer coach accused of murdering 12-year-old Garrett Phillips in Potsdam in 2011.

She released a statement today that reads:

"After considering all the options and after consulting the Phillips and Collins family, District Attorney Mary Rain has determined to re-indict Oral Nicholas Hillary. When considering the option to appeal, DA Rain said, 'it could take an additional 18 months before the family received justice and that is unacceptable.' The process to re-indict will start Monday."

Hillary's initial indictment was tossed in October by Judge Jerome Richards.

The seven page order dismissing the charges was critical of District Attorney Mary Rain for  what he described as prejudicial questioning of witnesses that might have unduly influenced the grand jurors.

No one testified to being a witness to the murder, and no DNA evidence was presented, Richards noted. There was an allusion in the testimony to attempts to collect DNA evidence, No such evidence was presented.

In another example, Richards wrote, “There was a great deal of testimony about video surveillance cameras showing either Garrett Phillips or Oral Hillary at different locations, some of them fairly near Garrett's residence, at times within several hours to within minutes before or after the probable time of the crime. Many of the foundation questions for introducing the videos into evidence lacked an adequate foundation. For example, repeatedly the prosecutors asked a foundation witness whether the things shown in the videos accurately showed the scene as it looked on the particular date and time. No factual basis was provided for the 'yes' response provided by many of these witnesses.”

“The grand jury proceeding is an accusatory process, not a trial. The question to be answered by the grand jury is whether or not there is sufficient legally competent evidence to give the grand jury reasonable cause to believe that defendant murdered the victim.”

Richards said the evidence presented was not sufficient.

Without that, Richards wrote, “the integrity of the proceeding is impaired and prejudice to the defendant may result, rendering it defective…requiring dismissal.”

Garrett Phillips, a well-liked student at A.A. Kingston Middle School, was found unconscious in the Market Street apartment he and his mother lived in October 2011. He was found by police, who were called after neighbors heard a loud noise and moaning coming from the apartment.

Garrett was taken by the Potsdam Volunteer Rescue Squad to Canton-Potsdam Hospital, but efforts there to save him were unsuccessful. An autopsy showed he had been suffocated and strangled.

The following night, more than 200 students, teachers, administrators and parents gathered outside the school for a candlelight vigil, where people spoke about him and his fun-loving nature.

There has been little news about the investigation since then. Investigators tried to find any possible witnesses with a door-to-door canvas for several blocks around the murder scene, and a week after the murder at about the same hour, police were out on Market Street passing out flyers in a continued effort to find witnesses.

Meanwhile police had collected potential evidence which was sent to the State Police lab, but any results were not made public.

The case seemed to be stalled as family and friends called for justice. From Potsdam to Parishville and beyond, lawn signs began popping up with the boy’s picture and saying “Justice for Garrett.” A scholarship fund was set up in his name. Not long ago, his mother, Tandy, said she was “taking it day by day.”

Not long after the investigation began, Hillary was identified by some local media as one of several people who were questioned by investigators. That revelation to the press is the basis of a civil lawsuit being pursued by Hillary against the police and the village for defamation.

Asked what had changed recently in the investigation that led District Attorney Mary Rain to go to a grand jury for an indictment, Chief Bates said, “That would be a good question for the DA.” He did say there had been “more information related to the case.

“This has obviously been a difficult case for the department, the state police and the DA,” said Chief Bates, who became chief since the murder.

“We’re very pleased with the outcome of the grand jury and the indictment. There is more work to do to prepare for trial. We’re not done working,” he said after the first indictment.

Bates made special mention of Potsdam Police Lt. Mark Murray and New York State Police Major Crimes Inv. Ted Levison. “They and the rest of the department and state police have worked side by side since the beginning. Their hard work and determination brought the case to where it is now,” Bates said.

Lt. Murray, Potsdam’s lead investigator in the case, said he was “proud of my community for supporting the entire investigation. I look forward to closure for the family and the community, including the schools. We won’t stop working on this until we get a just outcome.”