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

By CRAIG FREILICH

The indictment against accused murderer Oral Nicholas Hillary has been dismissed in an order from St. Lawrence County Court Judge Jerome Richards.

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

Hillary has been charged in the death in October 2011 of 12-year-old Garrett Phillips of Potsdam.

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.”

Referring to Criminal Procedure Law and previous cases before the state’s highest court, the Court of Appeals, Richards cited a “duty of fair dealing with a witness and with the process. Engaging in pervasive misconduct during a grand jury proceeding can impair the integrity of the proceeding and lead to dismissal of the indictment.”

“It is particularly troubling to the court that in this serious case, which is so heavily dependent on circumstantial evidence, the prosecutor's improper questions, direct and indirect expression of opinion, and use of numerous exhibits without proper foundation may have impaired the integrity of the proceeding,” Richards wrote.

In his dismissal, Richards made note of DA Rain’s questioning of alibi witness Shana-Kay Hillary, the defendant’s daughter, calling some of her questions “improper and highly prejudicial.”

Richards wrote, “The questioning of Shanna-Kay Hillary covered approximately 80 pages… The problems arose when the prosecutor asked Shanna about her conversation with her lawyer, within a week after Garrett died. In the grand jury proceeding it was unquestionably improper and prejudicial for Ms. Rain to ask her what her lawyer had told her … and then to press her, in cross-examining fashion, telling Shanna that she had to answer because she was under subpoena. When this questioning persisted, Shanna disclosed that the attorney with whom she spoke was the same attorney who had represented defendant in his civil claim against police officers. Shanna was not a target of the grand jury investigation, as Ms. Rain eventually stated. What Shanna told her attorney is not relevant to whether Oral Hillary did or did not allegedly kill Garrett Phillips. In effect, with this line of questions, Ms. Rain was trying both to undermine a potential alibi defense and at the same time portray witnesses who could provide a potential alibi defense as lying to protect defendant. The prosecutor's questioning undercut the very essence of the grand jury's fact finding mission. The jury was tasked with believing the proof oft he defendant's location near the victim shortly prior to the crime or crediting the alibi witness' testimony that the defendant was home at the time of the crime. The prosecutor's expression of bias by her disbelief of the witness' testimony for all intents and purposes took out of the jury's hands a determination of what the proved facts were in that regard. Worst of all, Ms. Rain asked Shanna essentially the same question thirteen times as to how she could "explain the unrefuted proof' that established that defendant was not in Shanna' s home at or around (a specific time changed with each question) on the day of the homicide…. This testimony was bullying a seventeen-year old girl, who clearly stated that she did not understand what Ms. Rain meant by 'unrefuted proof.' Ms. Rain did not explain what she meant by that, and moreover, it was extremely prejudicial to use words like 'unrefuted proof in the grand jury while questioning a witness. These questions invaded the fact-finding role of the grand jurors, and told them what Ms. Rain thought that the proof showed. The question was so improper that it could not have been asked at trial. If it would be improper at trial, it certainly is improper at grand jury. The prosecutor's question clearly stated to the grand jury what her belief was regarding the fact at issue and was an improper attempt to influence the grand jurors.”

“The prosecutor seemed to put aside any neutrality and balanced judgment - duties imposed on her by case law - in questioning two witnesses who were later identified as potential alibi witnesses. Any indictment returned on such facts as were presented to the grand jury must be the product of unquestioned fairness, precisely because the meaning of the events described is not conclusive proof of guilt. Here, that was not the case.”

But the order notes that prosecutor Rain can try to indict Hillary again.

Hillary was indicted in May, two and a half years after the strangulation death of 12-year-old Garrett Phillips of Potsdam in the Market Street apartment the boy shared with his mother.

No suspects were ever specifically named, but Hillary, a soccer coach at Clarkson University at the time, was named by Potsdam police as a person of interest, the only person so identified.

Hillary is alleged to have had a relationship with Garrett Phillips’ mother.

The investigation appeared stalled until an indictment last May by St. Lawrence County District Attorney Mary Rain, who had been elected the previous November.

Hillary was released on bail after several months of wrangling over the value of property he wanted to put up as collateral.