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Attorney in Potsdam defamation suit moves to have documents in homicide investigation unsealed

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POTSDAM — The attorney representing Oral “Nick” Hillary in a federal defamation suit against village police has moved to have documents in the civil action unsealed, arguing that the necessity for the sealing order — “an ongoing homicide investigation” — is no longer valid.

With a grand jury reportedly convening Monday to investigate the circumstances of the murder of 12-year-old Garrett J. Phillips, Mr. Hillary’s attorney, Mani C. Tafari, Queens, maintains there is no “compelling reason” to keep sealed the motions for summary judgment filed by both Mr. Hillary and the village.

“As it is now clear that the St. Lawrence County’s District Attorney’s Office intends to present (Mr. Hillary) to the grand jury, the ‘ongoing’ nature of the investigation no longer exists, as the District Attorney has determined who they will attempt to prosecute for this crime,” Mr. Tafari wrote Friday to U.S. District Court Chief Judge Gary L. Sharpe, Albany.

In late March, Judge Sharpe had ordered the opposing motions sealed upon the village’s request after it received a letter from District Attorney Mary E. Rain, who wrote that the village’s motion would contain “many sensitive documents” concerning the investigation into Garrett Phillips’s death.

“Because this is still an ongoing homicide investigation, the publication of these documents would be extremely detrimental to the case,” Ms. Rain wrote.

In his motion to have the documents unsealed, Mr. Tafari notes that information contained in the sealed motions “has already been provided to the press,” referring to stories last week in the Times and on WWNY’s 7 News. He claims the WWNY piece said that Mr. Hillary’s daughter is due to testify before the grand jury and that the testimony is “critical” because the daughter provided Mr. Hillary “with an alibi early in the investigation.”

Mr. Tafari said, however, that the daughter did not provide any information “early in the investigation,” as the first time she talked to police was when she provided a deposition for the civil suit. He also cites a Times story that said that Garrett Phillips’s grandmother, Patricia Phillips, “believed an assistant coach at Clarkson University, Potsdam, was Mr. Hillary’s alibi.”

“Based upon the information contained in the articles, Defendants have already undermined the basis for their own request to seal by providing information to members of the public regarding the testimony of Plaintiff’s daughter and assistant coach Ian Fairlie,” Mr. Tafari wrote in his motion.

Mr. Hillary, who is head soccer coach at Clarkson, claims in his lawsuit that he was defamed by village police when they allegedly implicated him as a possible suspect in the murder of Garrett Phillips, who was found strangled Oct. 24, 2011, at the youth’s Market Street apartment. Mr. Hillary also contends, among other causes of action in the suit filed in September 2102, that police illegally detained him in the matter.

In January, a federal magistrate judge ruled that a deposition given by Mr. Hillary in the lawsuit could be shared with police investigating the boy’s death. Mr. Hillary had requested a protective order that would have shielded the testimony from law enforcement, but a judge ruled, in part, that the circumstances surrounding the youth’s death are relevant to the claims and defenses in Mr. Hillary’s lawsuit, as he maintains he is “wholly innocent of any crime” and alleges that village police “accused him of killing Garrett Phillips, and that statements supporting that accusation were untrue.”

Judge Sharpe had not ruled on the request to unseal the summary judgment motions as of Monday.

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