"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."
Thursday, August 4, 2016
Oral "Nick" Hillary: New York State; Bulletin: The Watertown Daily Times reports that his murder trial is on track for September - and that the defence continues to attack the forensic evidence..."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." Reporter W.T. Eckert;
