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Hillary defense calls for mistrial after learning of statement given to police that may exonerate defendant

Posted 9/13/16

By ANDY GARDNER CANTON -- After learning of a statement that could exonerate Oral "Nick" Hillary of murder charges, the defense team is moving for a mistrial. Hillary is being tried in St. Lawrence …

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Hillary defense calls for mistrial after learning of statement given to police that may exonerate defendant

Posted

By ANDY GARDNER

CANTON -- After learning of a statement that could exonerate Oral "Nick" Hillary of murder charges, the defense team is moving for a mistrial. Hillary is being tried in St. Lawrence County Court for second-degree murder, accused of killing 12-year-old Garrett Phillips in 2011.

Defense attorney Peter Dumas said just yesterday they learned of a statement given by Gregory Brown in 2015 that could out someone else at the murder scene when Phillips died.

“Mr. Brown saw another individual entering 100 Market St. on … Oct. 24, 2011 ... that individual being one John Jones. In the statement it describes how Gregory Brown knows who John Jones is. He saw John Jones’ vehicle, it was parked at 100 Market St.," Dumas said.

Jones is a former lover of Tandy Cyrus Collins, Phillips' mother. He is also a St. Lawrence County Sheriff's deputy.

He said since prosecution knew about the statement but didn't turn it over, it constitutes a so-called Brady violation. Brady material is evidence that is potentially exculpatory that the prosecution is required to share.

“We’re looking for extreme sanctions, your honor ... had we had these notes prior to picking the jury, we could have interviewed Greg Brown and had him on our witness list," Dumas said. “I know there is one arrow in your quiver we’d like to choose and that’s dismissal … we ask the court declare a mistrial.

“Your honor knows of all the sanctions that can be imposed … what we really want to exclaim there is this isn’t a small violation. This is huge. We have a witness say he saw another person at 100 Market St. on Oct. 24, 2011 at or about the time this occurred."

Dumas said Brown gave his statement to state police Inv. Ted Levison in April 2015. He said District Attorney Mary Rain took his statement without Brown's lawyer present, contradictory to his wishes.

“Ms. Rain stated he was a witness … Ms. Rain said this evidence did not go along with her theory of the case, so she wasn’t interested," Dumas said.

Prosecutor William Fitzpatrick tried to argue against the notion of a mistrial.

“Let me point out the following: We have never been informed in this court with regard to this motion … when defense council for Mr. Brown informed the defense team about this interview ... we have danced around the subject of John Jones. In media accounts, John Jones is the killer … it’s not our intent to suggest John Jones is the killer, the police didn’t follow up properly with suspects," Fitzpatrick said. “He very specifically said not only did he see Mr. Jones go into 100 Market St. with Mr. Phillips, but his vehicle was there.

“At the time Garrett Phillips was being murdered, Mr. Jones’ vehicle is on Cottage Street on tape," he said.

Fitzpatrick called the mistrial motion "extreme."

“I think the sanction requested is extreme under the circumstances," he told the judge, adding that the people will try to get Brown, who is incarcerated, on the witness stand as soon as they can.

“Extreme is murder in the second. Extreme is putting Nick Hillary away for the rest of his life without having all the facts. And we didn’t," Dumas replied.

Around 9:45 a.m., the judge called recess while he went into his chamber to decide which action to take.