(CANTON, N.Y.) -- 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, Tuesday morning.
Lawyers for Oral "Nick" Hillary -- a local father and a former college soccer coach -- asked for the dismissal or mistrial Tuesday 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 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 Tuesday 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 Tuesday 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. Tuesday 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.
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