The Murder of Garrett Phillips

It has been a while since I have sat down and taken the time to blog.  Every week I tell myself it needs to be done and then I always seem to fail.  I could maybe blame the summertime and being more active but in reality that probably is not a legitimate excuse.  So, once again I decided today was the day and after watching to television episodes that aired this weekend I already knew what case I wanted to talk about.

Despite Dateline airing a two hour program and 20/20 having their own episode, both of which who amazing showed a lot of different evidence thankfully I knew this case would have a lot more of information out there.  It soon became one of those cases that I had to stop myself from researching and obtaining information before I became like Thomas Wolfe in a movie I recently watched about his issue with writing and writing and not knowing when to stop.  

I had not heard of this case until I viewed the television shows and I found that many others felt the same despite it being a fairly publicized in upstate New York.  It was a case in which I walked away feeling as if the victim, twelve year old Garrett Phillips, had sadly become a footnote in his own murder.  So, when I started out on my research of the case I had every intention to change that but after obtaining all the information that I have am uncertain that I can be successful in that goal.  

If you are a reader of my blog you know that often it is less about the crimes than about the legal system and the justice involved.  I am a firm believer that the law is to be followed in every situation because when that does not happen, justice does not prevail.  Some times it allows guilty people to go free, but it also allows innocent people to be not just convicted, but have their lives ruined.  For example, when a suspect asks for an attorney, by law the police are to stop questioning them and if they do not anything they obtain after cannot be used against them in court.  I know of an incident in which a man repeatedly asked for an attorney and yet the police continued to question him and ultimately got a confession out of him.  Wrongly, that confession was used at his trial to which he was convicted.  The conviction was overturned; the man was convicted again and again the officer involved in that confession had been allowed to testify about things he should not have and once again the conviction was overturned.  In both trials the man was given nearly fifty years for molesting his own daughter.  Ultimately he ended up making a plea deal in which he only received 12 years and of course only served 6 of that.   I truly believe the man to be guilty of his crimes (there were other trials for similar actions) but law enforcement, and ultimately the prosecutor did not follow the law and in the end allowed the man to serve only a small amount of time.    The Garrett Phillips case is not only riddled with misconduct, lies and misinformation but some of those involved have faced a multitude of allegations for their actions in other cases.

A few minutes after 5 pm on October 24, 2011 Sean Hall and his finance' Marisa Vogel were in their apartment in Potsdam New York, watching television and heard a lot of noise upstairs.  This was not the normal noise they were hearing considering the lady upstairs, Tandy Cyrus had two boys that lived with her.  No, this time they heard suspicious sounding bangs and screaming. They even believed they heard someone yell "Help." Vogel would say that she went to the upstairs apartment door and knocked and while no one answered she believed she heard the lock on the door be locked and someone walking around inside. At 5:07 she made a 911 call telling the dispatcher that something simply did not seem right about the sounds she heard.  Within about ten minutes officers were at the door.  They too knocked and received no answer but claimed to hear walking in the apartment.  The maintenance man for the complex was called and while waiting to be let in the officer claims that still, at around 5:25 he heard what he believed to be walking inside the apartment. Soon after the officer was let in and it was not long before he found twelve year old Garrett Phillips in the doorway of his mother's bedroom.  He was unconscious and barely alive. Garrett was transported to the hospital that was just down the road and after suffering a cardiac arrest issue passed away around 7:20. Ultimately it would be determined through an autopsy that Garrett had been beaten and strangled before his death. 

Meanwhile at the apartment officers were talking to Hall and Vogel as well as searching the apartment.  They found a window in which they had believed the perpetrator had jumped from.  It was a second story window that had a small trash bin underneath it.  There were fingerprints on the window sill and a muddy footprint next to the trash bin.  The prints also reportedly headed in a particular direction but then trailed off.  

Almost immediately, some say before they even knew for sure a crime had been committed, Oral "Nick" Hillary was on the police radar.  Nick, as everyone called him, was the recent ex-boyfriend of Tandy Cyrus and was a local soccer coach for nearby Clarkson University.  Nick had been a standout soccer player in college.  He had immigrated to United States from Jamaica in 1990 when he was about 16 years old.  He had been the soccer coach at Clarkson since 2009.  

Potsdam New York is not a town of diversity when it comes to race.  Their population is about 95% white and considering there are apparently several colleges in the area it is likely to believe that a lot of the remaining 5% of people are either students or employees of the universities.  This was true for Nick Hillary.  In 2011 he was the father of three children and until he met Tandy Cyrus, who was white, he had been living with the mother of his children.  In August of 2011 Tandy had broken up with her long time boyfriend, police officer John Jones, and soon after met Nick Hillary.  According to reports after Tandy and Jones broke up they remained living together for a short while until she claims he had pushed her, to which she not only seemed to have moved out, but filed a complaint against him.  By the end of September she and Nick were dating and he soon filed a complaint against Jones himself saying that he had followed him home, confronted him about his relationship with Tandy and threatened to kick in his door, among other things, if he found out they were sleeping together.  Jones admits to going to Nick's home but denies threatening him, but then in the same breath says he was there to confront and confirm the relationship between Tandy and Nick.  

It seems that not long after this Nick left the mother of his children, taking his oldest daughter with him, and got a new place to live with Tandy and her two sons, Garrett and Aaron Collins. That lasted until the end of the following summer.  The reason for their split is quite a dispute. Tandy says that it was because Garrett did not like Nick and that apparently upon his first complaint she packed up her and her boys and moved to a new apartment, just down the street from where he had lived with John Jones.  They do not dispute however that Nick was given a key to Tandy's new apartment.  For Nick's part he says that their separation was not initially considered to be a split, hence he was given the key and helped her move, but more of a situation where they simply were not going to live together anymore.  His claim is that part of that was because they, as well as Garrett, had been harassed for their interracial relationship and in part because he and Tandy had different parenting styles.  They both admit that neither disciplined or punished the other's children but using an example Nick would say his daughter was not allowed to watch television on school nights while Tandy's children were and that cause a bit of a split between the kids.  They both agree that by September they had decided to split.  Nick claims to have returned his key to the apartment.  It does not seem that Tandy disputes this but prosecutors have eluded to this not being true, but I am unsure how they believe this.  

In one of the interviews I saw with Tandy she claims that at least once, if not more she had awoken in the middle of the night and found Nick in her bedroom over her.  In her interview she indicated as if she was scared and fearful of him.  No police report was filed and the same program in which I saw this statement it was revealed that in court Tandy had indicated that that incident(s) was less than the scary encounter she had made them out to be and was more in line with their relationship continuing.  Tandy also admitted in at least two interviews in which I saw that Nick had never in any way hit her children, lost his temper or threatened them in any way the entire time they were together.  And yet almost immediately when asked who she thought would hurt Garrett she said Nick.

Focus was so immediately put on Nick that the night Garrett died police were at the scene of a soccer game in which Nick was coaching video taping his every move.  The interesting thing about this is that officially apparently a Lt. Murray was involved in this case and described in a report seeing a "significant limp" in Nick's gate, indicative of an ankle injury but on the television shows I observed officer John Jones, the ex-boyfriend of Tandy indicated that it was his involvement and reporting of this video that allowed the police department to obtain warrants.  It was later reported to the press that Nick had been limping and that the video clearly showed this but even the New York Times reported later after viewing the video they saw no sort of limp.  To be fair I saw two segments of this video, one of Nick on the sidelines at the game and one walking back to likely the locker room, and in neither video did I observe any sort of limp.  In the same respect, Nick, did admit later that near that time he had injury his ankle while what he claimed was moving furniture. This injury will come into play again later, but in my opinion I believe more significance was put on an injury to a perpetrators ankle than warranted.  It was a complete guess on the part of law enforcement that whomever jumped out of the window would have injured their ankle. To add to this they also theorized that because of the height of the window from the second floor it would have had to be an adult and not a child who had jumped from the window.  

At any rate, saying that Nick had a limp the night of Garrett's death allowed warrants to be signed and within 36 hours of Garrett's death Nick was brought into the police station.  He would claim that he had no idea he was a suspect and that it was not until he had been answering questions for approximately an hour with investigators that he became aware they suspected him.  At this point he apparently attempted to leave the station (there is video of this) and he was read his Miranda Rights and told he could not leave as of yet, although he was not officially arrested.  It would later be found out that the morning following Garrett's death that the police had informed prosecutors that Nick was the focus of their investigation and they were planning to squash the rumor that it was kids involved. Keep in mind that not only are they already focusing on Nick and dismissing any idea that kids were involved, without obvious investigation, they had also apparently already "cleared" John Jones, a current deputy and former boyfriend of Tandy's, who had been allowed to sit with her while she was questioned the morning following Garrett's death, in fact holding her hand.

I will get back to Nick and his interrogation in a minute but I want to address a little about John Jones and how they supposedly "cleared" him.  The middle school in which Garrett attended seems to me to be similar to other small town areas in which there's basically a school campus in which more than one school is on the premises.  In this case there was at the very least a middle school and high school that shared an area.  The distance between the school and Garrett's home was not far and the school had cameras.  Prosecutors would claim, and Nick would concede, that Nick was at the property, nearer to the high school soccer field at the time Garrett left school.  I will go back to that particular part of the video in a bit, but between school and home Garrett would also pass another camera.  John Jones lived across the street from the hospital and their camera also showed his home. Prosecutors claim just before Garrett went by Jones returned home and at about 5:20 he is seen walking his dog.  Now, this could be true although to be a bit fair the camera is far enough away that you cannot see a face of the person, but it's assumed it was Jones, hence prosecutors say he could not have been in the apartment at 5:25 when the officer's heard what he said was footsteps inside.  In the same respect, Nick Hillary had a witness, his assistant soccer coach, Ian Fairlie, who said Nick was at his home around 5:20 and appeared to be no different than usual.  It seems then however that investigators and prosecutors would claim that the sounds heard by the officer inside the door around this time was not in fact footsteps of someone inside but Garrett making noises in distress.  If this was now their claim then this does not necessarily clear Jones, but of course they never changed their course.  Issues with Jones would continue throughout the case and in fact would later almost cause a mistrial. One of the things I find interesting about this video camera at the hospital and what not just the prosecutors presented but also the televisions shows I watched was that no one ever showed, or pointed out that Nick's vehicle, did, or did not also come down this street after Garrett had skated by. Prosecutors would claim that Nick followed Garrett home and used the video at the school to hammer this point but not once did they show, or at least that I heard, or was able to find, did they show that he continued to follow him on this street.

At any rate, at the time that Nick was brought in for questioning so was his assistant coach, Ian Fairlie would would always maintain that Nick had arrived at his home at about 5:21 (he says he knows this because it was just after he made or received a call) to let him know there was a meeting with a player before their practice at 6pm and apparent subsequent game that evening. Once Nick determined that he was a suspect he requested a lawyer.  At this point the officers were legally not to continue asking him questions.  They could however deal with the issues of collect evidence from him as well as the things from the search warrants they had obtained for Nick's home, office and vehicle.  It has been shown that at some point, after he had requested a lawyer, officers continued to talk to him and requested to see his ankle saying it would basically clear him.  Nick refused and many have taken issue with that.  I however, do not.  For one, again, he had requested an attorney so the interrogation was to end, to which it did not.  Secondly, he claims that he had injured his ankle but maintains it was not in the way in which investigators suspected.  Had he shown the ankle the officers would have likely had what they would call an "Ah Ha" moment and from what we know now about what was going on around this time it seems they were already using their tunnel vision on Nick.  But, in the same respect, Nick claims that he was required to remove his clothing and turn it over to officers.  Presumably pictures and/or video were taken (I have seen those in which he was left in his boxers) and nine hours after he first entered the station he was released wearing a hazmat suit, without his wallet or vehicle. His DNA was apparently obtained through a coffee cup and a cigarette butt.

In the end there was no evidence found at the scene of the crime, nor obtained in any of the search warrants that linked Nick Hillary to the death of Garrett Phillips.  Hair, fiber and even fingerprints were found at the scene but none conclusively matched Nick.  Most reports say initial DNA tests were inconclusive to the point they could not exclude Nick but were far from positive.  It was not until years later, just before Nick would be put on trial that the prosecution would say they had a DNA link to Nick, but there were so many problems with that, that the judge over the case ruled it inadmissible.  The prosecutors had contacted someone in Denmark to use what is called low template DNA analysis (aka LCN or low copy numbers).  Without going into huge and great boring detail of DNA and this particular process what I will say about it is that it has largely been discredited in the United States as unscientific and precise.  The process requires less than 1/2 of the amount for even the lowest amounts the United States has used, as well as it requires more PCR cycle to come up with a profile, leading many scientists to determine there is a larger risk of not just contamination but incorrect or unstable results. That being said I am sure that there are those that would point out that if the prosecution said it was a match to Nick that to have it thrown out was obviously a defense tactic.  For my stance on this I cannot confirm or deny that to be true.  What I can say is that with all of the other things involved surrounding this case, some I have discussed and some I have not as of yet, I personally would be suspicious of any results that took this long to come up with including the chain of custody of the evidence and determine for certain just where this DNA sample came from.  For the prosecutors part they would say that the DNA was found under the fingernails of Garrett Phillips and yet there a) apparently was not enough of this sample to have standard tests done in which a minute amount is already only needed and b) there are no report of scratches on the body of Nick Hillary just 36 hours after this supposed confrontation.

For the next few years the case was pretty much at a standstill.  Then district attorney, Nichole Duve, would say that there was not enough evidence in the case to arrest or convict anyone.  Then in the fall of 2013 Mary Rain walked in and ran against Duve for her job. Rain came in with luster and vowed to get the case settled in some way.  For the last several years the area had been plastered with signs saying "Justice for Garrett" and raising money for a reward.  As with any case, the family of the victim wanted the case solved and in their minds they all knew who did it.  By time though Nick Hillary, who had never been charged had filed a civil suit against the Potsdam police for violating his civil rights.  Mary Rain would stand around town making speeches often with Tandy Cyrus by her side.  One of her campaign promises was to solve this case and blaming Duve for her lack of diligence on the case.  Just prior to the election it was said that Duve was basically going door to door campaigning and Tandy Cyrus claims she had a Mary Rain poster in her yard (apparently she no longer lived in the apartment where Garrett was murdered) and Duve came to her door.  Tandy would later post about this encounter on Facebook stating that Duve was surprised when she opened the door and when she asked to talk about her son's case Duve refused.  Mary Rain took this and ran with it.  She let the town know that Duve obviously was not concerned with solving Garrett's case since she had no idea where the mother of the victim lived.  For her part, Duve was quoted as saying during this time "The individuals (Mary Rain) who have dragged this family into a political campaign have done them a disservice and are damaging the chances for ultimate justice for Garrett Phillips." Keep in mind this was said in the fall of 2013. Other critics of Mary Rain would state that she ran her campaign largely on the promise to solve the case and yet she had not so much as looked at a file or been informed as to what information had been obtained.  Regardless Mary Rain won the election and took office in January of 2014.  One has to wonder now, almost three years later, just how many of her supporters regret that decision. Not only has her term as district attorney been riddled with multiple allegations of misconduct that do not all stem from this case alone but one article has named her "The Most Dangerous Prosecutor in New York State." 

After watching the television episodes this weekend I had commented in some true crime groups I belong to that I was not sure why but Mary Rain struck me funny.  I thought it may have been because for the Nick Hillary case she had brought in veteran high profile attorney William Fitzpatrick to try the case.  I could not remember at first where I had seen him before but I recalled that he too had given me funny vibes.  Today I realize just where I had seen him before.  He had been the prosecutor in the Stacey Castor case.  Stacey Castor was convicted in 20o9 for the murders of two of her husbands and the attempted murder of her daughter.  Despite my belief in her guilt and the fact she was convicted for her crimes, Fitzpatrick had still struck me as over zealous and I have to say shady.  Rain would tell reporters that she had asked for Fitzpatrick's help in this case because he was a skilled prosecutor and she had only tried two murder cases.  Still something just seemed off with Rain.

She had gone into office in January of 2014 and in May, after a grand jury session, Nick Hillary was arrested for the murder of Garrett Phillips from the indictment of the grand jury. He was able to post bail (although there are allegations that he could have way sooner but that Rain prevented it) and by October a judge dismissed the indictment saying that Rain had committed prosecutor misconduct.  According to the judge she had asked "improper questions," expressed opinion rather than fact several times, used exhibits without "proper foundation." She was also accused of bullying witnesses, sometimes asking the same question 13 times. She vowed to re-file and did so.  The 2nd indictment for Nick Hillary for 2nd degree murder was issued in January of 2015.

The rest of 2015 and into 2016 Rain did not fair any better.  In September of that year, first Rain had been summoned to an appellate court to answer questions of contempt for failing to file paperwork in several appeal cases. Rain blamed low staffing and stated she had trusted her assistant who she says lied to her about filing the paperwork.  Apparently the board bought it and no charges were filed.  Then just after that ruling a judge threw out the conviction of a man who had been convicted of molesting a 15 year old child.  Despite apparent repeated attempts at the trial by Judge Richards who had presided over the case, to admonish Rain and instruct the jury to disregard comments made by Rain, especially during her closing arguments, an appellate court ruled her statements were too inflammatory. They ruled that she had told the jury that the defendants failure to deny the charges meant he was guilty; told the jury he had repeatedly lied; and stated that his arrest alone proved he was guilty.  By 2016, she was getting more criticism involving the Nick Hillary case because it had been delayed several times.  But April 2016 she was pretty busy defending herself in other areas.  Judge Richard's, the man who had presided over the rape trial that was later overturned, led the rally in accusing Rain of prosecutorial  abuse. Richards was one of the leading criminal attorney's in the county and he was now reclusing himself from all her cases, including the Hillary case that he had initially been on the docket to hear.  He had learned that Rain had allowed what he called an "aspiring attorney" to try a felony assault case and yet the person had not passed the bar exam.  Once again Rain blamed short staffing as her reasoning.  The county legislature openly expressed a "no confidence" vote for her and asked leaders in the state and county to have her investigated.  

At this point Hillary was still yet to go to trial and it seems that an FBI investigation was began (and still ongoing apparently) into allegations that she had contacted jail inmates to elicit confessions from other inmates that she knew were represented by attorney's.  This is a serious violation (as if they all aren't) in her profession.  She's also been accused of leaking private grand jury testimony in emails to other attorneys and that too is being investigated. Later determined her previous employment as a public defender had been terminated upon allegations of ethic complaints. She was accused of mismanagement, allegations of sexual harassment and the abuse of staff. During her current three years as District Attorney, 14 assistant DA's have resigned and more than a few have complained that she filed complaints and had investigations made against many of the people she blames for her firing in the public defenders office.

Of course, despite the fact that she did not personally prosecute the Nick Hillary case, it too was riddled with prosecutor misconduct from the start.  A jury had been sat but with allegations that race played a role in this case and seeing that the entire jury was white, the defense quickly decided to have a bench trial in which only a judge would decide his fate. Within the first few days of trial it was discovered that there had been a witness who had reported in 2015 (the witness was now incarcerated for rape) to investigators that he saw John Jones enter Garrett Phillips' apartment with him on the day of the murder. The defense had not been notified of this witness and immediately asked for a mistrial and alleged allegations of a Brady Violation.  A prosecutor is required to share ANY and all information they receive on a case no matter how trivial it appears to them.  To not do so is considered a Brady Violation and one of the most steadfast rules upheld in prosecutions. The judge apparently believed that he could be impartial since he was the only person to cast judgement on the defendant and chastised the prosecution but continued with trial. Amazingly it's been alleged that Rain's response to this was the information was suppressed because it did not go with the prosecution theory of the case so she she had no duty to disclose it.  This law school 101 and I have absolutely no idea how this woman has been allowed to remain in office.  

At any rate, since the DNA was ruled inadmissible, and there was no other forensic evidence against him the prosecution had really basically only their theories to go on.  They claimed that the motive for the crime was to get even with Tandy Cyrus for breaking up with him and he blamed Garrett for the split.  Their proof?  Well they showed the video of the school parking lot claiming that if he was going home he would have turned right instead of left, the same way that Garrett had turned.  They claimed this constituted stalking.  They showed the video to the judge.  Nick Hillary had said he had gone to the school on what sounded like a whim to watch, to later recruit, soccer players.  Prosecutors were able to show that he could not really have seen the field from the two angles he sat, but in his defense, he was there a total of six minutes, claiming it began to rain harder and he was hoping it would slow down and that soon after he got there it was half time so he would have not seen the players play anyway.  Prosecutors also used video from a taped deposition in the case against the police department where when asked about events of that day he had often said "I do not remember."  Keep in mind that this case was not a wrongful death case brought on by the family in which he was being sued for the death of Garrett by the family.  This was a case Nick Hillary had brought against the police department for violating his civil rights.  In my opinion, his actions on the day of the murder were irrelevant in that case and only how and what the police did would have matter but the prosecution used it in his criminal trial.  The only other thing that they tried to use was Nick's daughter's testimony against him.  He had claimed in the deposition that he had gone home after the school and discussed dinner but they showed a text from his daughter at 6:25 asking him "what's for dinner?"  She would claim that she got home from school around 4:30 and Nick was home, she would say that they talked for a few minutes and she took a shower that lasted about 20 minutes and while Nick had said he was leaving, he had already returned by the time she was out of the shower. Prosecutors wold claim that she was home closer to 4:15 than 4:30, giving him a different time frame, although in my opinion that does not make much sense either considering he was leaving the school parking lot at 4:52.

For the defenses' part while much of the media and outside the courtroom allegation revolved around race, inside the courtroom it was only slightly mentioned.  One of the more interesting things I found from them was a therapist who had been seeing Garrett testified for them stating that Garrett had never mentioned to him not liking or even fearing Nick. I find it interesting that it was never mentioned why Garrett was seeing a therapist in the first place prior to his death.  What was going on that the public may not have been privy to?

In the end, on September 28, 2016 Judge Felix Cantena ruled that there was insufficient evidence to render a guilty verdict and acquitted Nick Hillary in the murder of Garrett Phillips.  For her part Mary Rain stated she was "devastated" by the verdict; she was "100% certain" Nick Hillary was guilty and stated she will not reopen the investigation.  Remember former DA Nichole Duve's statement two years ago????  

In the end I have to believe that tunnel vision was used in this case and whatever means were used to 'get their man.' Do I believe Nick Hillary is guilty of killing Garrett Phillips? I cannot say for sure, but what I can say is there surely is not enough evidence, and with that it makes me lean toward his innocence.  Where did Nick Hillary go after he turned left out of the school parking lot as the prosecution so wanted to make a big deal about? I would have to say he did not continue to "follow" or "stalk" Garrett as the prosecution would have people believe because we would have seen his car on the second video camera that was at the hospital.  Yet that camera showed a direct view to not just Garrett skating by, but the front of John Jones' house.  Prosecutors claim he was home but how do they know?  The camera faced the front of the home only and it was later learned that Jones had a key to Tandy's apartment as he gave it to investigators to compare it to any keys they found involving Nick Hillary.  Being a police officer and involved in investigations it's highly likely he knew that camera was there and what it would show and not show.  Why would Nick Hillary really murder this boy?  His only previous run in with the law had been years before for a misdemeanor marijuana possession charge.  No one ever testified he was ever known to be violent.  The same could not be said about John Jones or others involved in Tandy's life.  

I had wondered at some point how Nick Hillary would know Garrett would have been heading home at that time and just assumed with all the talk of him being involved in sports that he had practice that ended at a particular time.  But, what I learned was that basically Garrett was just hanging out after school playing basketball with his friend.  Apparently his mom called his cell phone and asked about his whereabouts. She told him to go home and get his homework done... a few minutes later he left. So no, it does not appear that he was scheduled to be there so premeditation would pretty much be ruled out, making this a crime of opportunity, and yet there's no physical evidence of Nick Hillary involved in the crime. Not to mention, Garrett was murdered around 5 pm while Nick was schedule to be at the University for soccer practice at 6.  He was on time and no one reported him seeming to appear to act or look any different than normal.  

Maybe Nick Hillary is guilty.. I cannot say for sure.  What I can say is that the prosecution and the police in the case did not follow legal procedures and simply put they lost this case all on their own.  As Nichole Duve one said by their actions they did Garrett and his family a huge disservice in obtaining justice.