The long-awaited murder trial of Oral “Nick” Hillary began this week in upstate New York. For a small-town event, the case has poured out a steady stream of headlines over the past few days and months. Underlying the local tumult is this basic question: did Mr. Hillary kill Garrett Phillips, the 12 year-old son of his ex-girlfriend Tandy Cyrus? Obscuring that question is layer-after-layer of intrigue, malfeasance, and incompetence by local law enforcement who investigated the case. The murder prosecution is beset by a bevy of complicating factors, including prosecutorial misconduct, case mismanagement, local politics, and the specter of racial tension (the victim was a white boy, and Mr. Hillary is a black man in a community that is 95% white). Combined, these factors raise fundamental concerns about the constitutionality of the trial taking place right now, and whether the outcome will represent a fair determination of Mr. Hillary’s alleged involvement in the most polarizing crime in Potsdam’s history.
To set the stage, it’s important to know that the elected District Attorney in St. Lawrence County, Mary Rain, is under immense pressure to deliver a conviction in this case. That pressure was not inevitable, but rather self-created. When she ran for DA, Ms. Rain campaigned on solving Garrett Phillips’s murder and bringing the killer to justice. In fact, the victim’s mother, Ms. Cyrus, even appeared as a guest at some of her campaign events.
If Ms. Rain’s need to win a conviction was not urgent enough, she faces additional pressure because her competence to lead her office has been called into question repeatedly in the past few months. County legislators passed a “no confidence” vote by a margin of 11-to-3 in April of this year, and requested that state officials decide whether she should be removed from office. That vote was precipitated by a range of concerns and complaints, including, according to the Watertown Daily Times, “an allegation of sexual harassment by a former assistant district attorney, the loss of grant-funded positions due to lack of oversight, the firing and forced resignation of ADAs and the resignations of several other ADAs which have left the office minimally staffed with inexperienced attorneys.” In an extraordinary moment in September of 2015, Ms. Rain was hauled into an appellate court to explain why her office had failed to file briefs on time. And, allegations of serious abuses of prosecutorial power also lurk, with a former chief assistant district attorney and former county administrator accusing Ms. Rain of planning to use grand jury investigations to intimidate individuals, including the chief public defender.
Indeed, ethical lapses have already undermined specific prosecutions out of her office. Judge Jerome Richards—who had earlier presided over the Hillary case—dismissed assault and menacing charges against Girard Gillett because one of the prosecutors in the case was not authorized to practice law. Assistant District Attorney Jonathan Jirik had not passed the state bar exam but nevertheless prosecuted the case against Gillett. Judge Richards filed a professional complaint against Ms. Rain and then recused himself from all cases involving her office pending its resolution. Ms. Rain’s apparent lack of supervisory skills is not the only source of her office’s ethical problems. In November of 2015, an appellate court held that Ms. Rain’s misconduct in the closing arguments of a trial required the court to overturn a rape conviction.
Returning to the case at hand, concerns with Ms. Rain’s ethical and professional judgment are not simply tangential to Mr. Hillary’s prosecution. The first indictment Ms. Rain obtained against Mr. Hillary was dismissed by Judge Richards in October of 2014 because the DA had acted improperly in a number of ways during the grand jury proceedings. Ms. Rain asked questions that lacked a proper foundation, asked prejudicial questions designed only to inflame the grand jury, and even asked one witness—Mr. Hillary’s daughter—to disclose what her lawyer had told her despite the well-known protections of attorney-client confidentiality that any lawyer should acknowledge and respect. Judge Richards also found that Ms. Rain had inappropriately expressed her personal opinion and bias to the grand jurors, usurping their role. Finally, Judge Richards determined that Ms. Rain bullied Mr. Hillary’s 17 year-old daughter with improper questions about how she could possibly refute the DA’s “proof” that the defendant was at the scene of the crime. Indeed, Ms. Rain asked “essentially the same question thirteen times” in a highly prejudicial fashion that not only confused the witness but also revealed what the prosecutor thought about the evidence.
One might expect a prosecutor whose misconduct had already endangered a high-profile prosecution to exercise greater caution in that case moving forward. But, Ms. Rain is not so readily deterred. On the very first day of Mr. Hillary’s trial, the defense team learned that the State had failed to disclose exculpatory evidence. This evidence was a police statement indicating that a witness named Greg Brown placed another suspect near the scene of the crime around the time the crime took place. That suspect? A man named John Jones. Mr. Jones, like Mr. Hillary, was an ex-boyfriend of the victim’s mother, Ms. Cyrus. More than that, Mr. Jones is a sheriff’s deputy and was himself involved in the investigation of Garrett Phillips’s death.
Defense attorneys moved for a mistrial once the new interview was revealed, but the trial court denied the request. It acknowledged that the State had committed an error, but instructed the defense that it could use the evidence in its own case despite the delayed disclosure. Meanwhile, Ms. Rain defended the misconduct by claiming that her office was not obligated to turn over the evidence because she didn’t believe that evidence was credible. Brady is not that complicated, but neither is a filing deadline, and it appears Ms. Rain’s office has trouble understanding them both.
Perhaps even more extraordinarily, Ms. Rain was apparently the one to coordinate witness Greg Brown’s questioning without his attorney present. That unethical maneuver contributed to this unethical result: “‘Ms. Rain indicated he [Brown] was a witness, therefore I didn’t need to be present . . . she said the evidence did not go with her theory of the case, therefore she was not interested,’ [Brown’s lawyer] Kyriakopolous said.”
It is noteworthy that police so quickly dismissed Deputy Jones as a potential suspect in the case, particularly since he played a role in the investigation. Interviews and statements from Ms. Cyrus, Deputy Jones, and Mr. Hillary indicate that Jones was very upset that Ms. Cyrus began dating Mr. Hillary after his own relationship with her ended. Moreover, Ms. Cyrus herself revealed that Deputy Jones had pushed her during an argument once before. Deputy Jones confirmed in large part Mr. Hillary’s allegation—taken down in a filed police complaint—that Deputy Jones tracked him down and accused him of cheating with Ms. Cyrus after Ms. Cyrus made clear that her relationship with Jones was over. These details, perhaps marginally relevant at first blush, appear much more significant in light of the witness statement placing Jones in the vicinity of the murder.
It is difficult to discern where the ethical problems begin and end in St. Lawrence County, except to say that Ms. Rain is at the center of every controversy. And, right now she is prosecuting Mr. Hillary in the case of her career. No matter the result, it is difficult to envision that a conviction would not trigger years of wrangling about the prosecutorial misconduct that permeates this case. Meanwhile, no matter the verdict, the Brady allegations against her have added to a growing list of problems that precipitated the recent no-confidence vote in her leadership.