"The defense team for murder suspect Oral “Nick” Hillary has filed its final brief in an attempt to keep the only reported physical evidence against him from being used at trial. Regardless of whether presiding Montgomery County Judge Felix J. Catena decides to allow it in at trial or not, Hillary attorney, Earl S. Ward, of New York, said that there will be no immediate appeal and the trial will still move forward on Sept. 6.........On July 25, Hillary and his team of defense attorneys were in St. Lawrence County Court during a Frye hearing to argue that prosecutors should not be allowed to use a DNA sample produced by STRmix, a forensic software tool used in testing DNA that could implicate Hillary in the 2011 strangulation death of 12-year-old Garrett J. Phillips. Hillary, 41, of 131 Leroy St., Potsdam, is charged with second-degree murder for allegedly strangling the boy on Oct. 24, 2011, at the Market Street apartment where he lived with his mother. In the notice of motion to preclude...final brief filed Monday by another of Hillary’s attorneys, Peter A. Dumas, of Dumas & Narrow P.C., Canton, wrote that 149 crime scene samples were processed for possible DNA, with state police running multiple experiments on two different genetic analyzers in order to compare DNA with Hillary. All those experiments reached the same results, inconclusive, Mr. Dumas said. Inconclusive results were also reached following two different tests on the DNA by Dr. Mark Perlin of Cybergenetics, Inc. in Pittsburgh, Pa. Dr. Perlin tested the samples with his “probabilistic genotyping software program” TrueAllele. At question is the reliability of STRmix and Mr. Dumas wrote that “the court’s role at the intersection of science and law is to ensure that the criminal justice system operates fairly.” Systems and practices have been put in place by the forensic science community to help ensure reliability, Mr. Dumas wrote, citing “validation … regulatory bodies … and conservativeness.” “None of these measures were in place in this case,” Mr. Dumas wrote. “In fact, the measures were not merely neglected, they were avoided … They used STRmix in such a way that they had no basis to say whether the results would be valid.” Additionally, Mr. Ward said one of the three developers of STRmix, Dr. John S. Buckleton, who was called to testify in defense of the software during the July 25 hearing, only chose to put information into STRmix that would include Hillary and Garrett. During that same hearing, Dr. Buckleton said the DNA profile he tested — which was measured to be between 4 and 8 trillionths of a gram — seemed to be a mixture of two people, a major and a minor DNA contributor. He said there was no evidence of more than two people, though there could have been more, if that was what he was looking for. “We have two propositions. We have the propositions aligned with the prosecution case that this DNA comes from Mr. Phillips and Mr. Hillary. It’s a proposition, it’s not a finding, and if you count it up, that’s two,” Mr. Buckleton said during the hearing. “I did not receive any advice from the defense, though I would have been very open to it. So I’m not saying there are two I’m just saying it is being treated as two.” The prosecution was “cherry picking” what they were putting into the forensic software to get the results the wanted, Mr. Dumas told the Times on Wednesday. “They only utilize the parts (of the DNA composite)that say it is Nick, the parts that don’t point at Nick, they throw it away,” Mr. Dumas said. “They use the stuff that helps them and anything that exonerates him, they throw out. Cherry picking ... that’s a good term for it.” Mr. Ward said that the sample Dr. Buckleton’s software tested was so small that it results in guess work. “Whatever you put in is what comes out and they have chosen to put information in that includes (Hillary),” Mr. Ward said. “That is why TrueAllele put everything in and made it objective as opposed to a subjective determination.” Moreover, Mr. Ward said that the results of what the prosecution is bringing forward doesn’t show that Hillary was the person who killed Garrett but only offers a “likelihood ratio” that he could be the killer. “There is a flawed analysis going on here. Because there were some shared alleles, they ran the statistic. It is a likelihood ration that it could be him,” Mr. Ward said. “Their position is the likelihood ration was high but the numbers changed, so you have to ask yourself, if the numbers can change so drastically how can you deprive a man of his liberty?“The bottom line is there is simply not enough DNA to figure out who it belongs to but they are desperately trying to connect this miniscule amount of DNA to Nick Hillary,” Mr. Ward said. Prosecutors are scheduled to respond to the defense’s brief on Monday with Judge Catena’s ruling to follow." If Judge Catena rules in favor of the defense and excludes the biological evidence, Mr. Ward said the defense will not seek a motion to dismiss and the case will still be tried. During the trial, Mr. Ward said DNA experts Dr. Perlin and Boise State University Biological Sciences Professor Dr. Greg Hampikian will testify on behalf of the defense. Mr. Hampikian is also the founder and director of the Idaho Innocence Project and has been referred to as one of the foremost forensic DNA experts in the U.S."