— -- An upstate New York judge has denied a dismissal or mistrial request made by defense lawyers for a man accused of killing his ex-girlfriend's 12-year-old son.
The defense attorneys made the request as the second day of court began in Canton, New York, this morning.
Lawyers for Oral "Nick" Hillary — a local father and a former college soccer coach — asked for the dismissal or mistrial this morning because, they say, prosecutors withheld information concerning a witness from them. The prosecution said “we should have turned it over" but called the defense's request for a dismissal or mistrial "extreme." That witness, Greg Brown, claimed he saw John Jones, also an ex-boyfriend of the victim's mother, on the street of the crime around the time of the murder.
"This may have changed our defense strategy," said the defense team, arguing that information from Brown's interview wasn't turned over to them until the first day of trial. "We may have stuck with a jury rather than a bench trial."
The revelation that a witness saw another person near the crime scene "isn't a small violation," said the defense team. "This is huge."
Police have said surveillance video showing Jones near his home around the time of the murder eliminated him as a suspect.
The victim, Garrett Phillips, was found strangled to death in the apartment of his mother, Tandy Cyrus, in Potsdam, New York, in the afternoon of Oct. 24, 2011.
The popular, friendly and athletic golden-haired boy had just begun the sixth grade when his mysterious murder shocked the small town. From nearly Day One, the spotlight of suspicion seemed focused on Hillary, and he was charged with second-degree murder several years later. Hillary has always insisted he is innocent. He waived his right to a jury last week and the case began this week as a bench trial.
Prosecutor Mary Rain said today she knew that Brown had come forward, but she said she was told his information was not truthful. She said investigators told the district attorney's office that Brown's statement was not something to pay attention to.
She added that she didn't know that police took written notes with Brown until Monday. She said in court today that she thought "the interview was all oral and was very short."
After the defense requested the dismissal or mistrial, Judge Felix Catena said he needed more information before making a decision.
Mark Murray -- who is now acting Potsdam police chief and was a Potsdam police lieutenant while investigating Garrett's death several years ago -- then came on the stand. Murray said that he, along with a New York State Police investigator, went to speak to Brown but didn't take a sworn statement. Murray said he believes he took notes and expects that any of the notes would have been turned over to the district attorney’s office. The state police investigator and an attorney for Brown also testified.
Both sides waited as the judge deliberated. This afternoon, Catena ruled that Hillary's right to a fair trial isn't compromised if the defense can still use evidence, and in this case, Catena said the information about Brown was disclosed in time.
Catena ruled that prosecution testimony will proceed, and, shortly afterward, the murdered boy's grandfather took the stand.
Garrett's grandfather and Cyrus' father, Joseph Paul, testified on the stand that in a conversation he had with Hillary, Hillary indicated he and Cyrus were breaking up because of Cyrus’ children.
Cyrus’ sister, Tonya Cyrus, testified on the stand that Hillary told her that Garrett didn’t like him and his rules, and that’s why Hillary thought Cyrus didn’t want to stay together. Under cross-examination Cyrus told the court that Hillary never told her that he did not like Garrett.
Garrett's paternal grandmother, Patricia Phillips, testified that once Garrett's mother and Hillary moved in together -- in late 2010, a year before his death -- Garrett would cry to her because he "didn't want to go back home if he knew the defendant was there."
Phillips told prosecutors that Hillary called her after he and Cyrus broke up. She said in the call Hillary “was really upset and he said Tandy was leaving him because of Garrett. I said Garret is only 12 years old, you two are adults it shouldn't [have] anything to do with him."
Under cross-examination Phillips said that Hillary never said he didn't like Garrett. She added that she had limited contact with Hillary in general.
Garrett’s friend Caleb Rice testified that he and Garrett played basketball at the school gym the afternoon of the murder. Rice said his father picked him up, and on their way home, Rice saw Hillary driving in his car in front of the high school.
Authorities say that surveillance video shows Garrett leaving the high school at 4:52 p.m. -- the same time they say a car that they say looks like Hillary’s was seen leaving the high school parking lot.
The first 911 call relating to Garrett was placed at 5:07 p.m., according to police.
Rice’s father, Dale Rice, testified today that he saw Hillary driving by around 4:45 p.m., "three to five minutes after picking up my son."
Hillary's defense team said in their opening statement Monday that he couldn't have committed the murder - which is estimated to have occurred a few minutes after 5 p.m., according to police -- because he was at home with his daughter until just after 5 p.m., and then with another soccer coach about 20 minutes after 5 p.m.