X

At defendant's request, Hillary murder trial will be decided by judge instead of jury; judge will not allow DNA evidence

Posted 9/8/16

By ANDY GARDNER Updated Sept. 8 10:40 a.m. CANTON -- The trial of Oral "Nick" Hillary will be decided by a judge rather than 12 jurors. Meanwhile, the judge has decided to uphold his order to not …

This item is available in full to subscribers.

Please log in to continue

Log in

At defendant's request, Hillary murder trial will be decided by judge instead of jury; judge will not allow DNA evidence

Posted

By ANDY GARDNER

Updated Sept. 8 10:40 a.m.

CANTON -- The trial of Oral "Nick" Hillary will be decided by a judge rather than 12 jurors. Meanwhile, the judge has decided to uphold his order to not allow DNA evidence.

Hillary is on trial for second-degree murder, accused of killing 12-year-old Garrett Phillips in Potsdam in 2011.

Amidst what would have been continued jury selection proceedings, the potential jurors were removed from the courtroom this morning before Judge Felix Catena took the bench.

"He’s choosing to waive such jury and go to bench trial. We’ve discussed this with our client," defense attorney Peter Dumas said.

After discussing the possible ramifications of being tried by a single judge rather than 12 jurors, Catena called a recess. He said they will discuss signing a written waiver when they reconvene, which would officially seal Catena as the sole judge of Hillary's innocence or guilt.

After a brief recess, Hillary, Catena and Hillary's lawyers signed a document waiving the jury. The jury pool was then dismissed.

In his decision to not allow the DNA evidence, Catena says New York State Police, which tested fingernail scrapings taken from Phillips the night of his death, did not perform internal validation studies on the testing method, which is called STRMix. 

Part of the method relies on a random probability sample (RMP) determined through an algorithm to figure out the probability of two samples of DNA matching.

"After reviewing the prosecution's recent submissions, it remains undisputed that internal validation studies were never performed by the New York State Police crime lab for the use of STRmix on casework samples developed at the lab and that the New York State Commission on Forensic Science never approved STRmix for use by the New York State Police for their forensic casework. Finally, Dr. Buckleton remains confident to his belief that 'RMP overstates the weight of the evidence in this case.' Motion denied," Catena wrote in his ruling.

The trial resumes with opening arguments at 9:30 a.m. Monday.