DNA – Potsam Murder

POTSDAM, N.Y. — A long-simmering murder case in northern New York connected to the
strangulation of a 12-year-old boy is shaping up as an important legal test of a cutting-edge method
of teasing DNA evidence out of microscopic amounts of biological matter.
The case involves the killing of the boy, Garrett Phillips, here in October 2011, a crime for which a
former local college soccer coach, Oral Nicholas Hillary, has been charged, despite a seeming
paucity of physical evidence.
In recent months, however, the prosecution has suggested that it may use low-template DNA
analysis to tie Mr. Hillary to Garrett’s murder, utilizing sophisticated algorithms to determine
statistical probabilities by analyzing genetic data that older methods could not interpret. In
particular, the prosecution is attempting to use software developed by a New Zealand company —
STRmix — on a minute sample that was scraped from one of Garrett’s fingernails and came from
an unknown individual, possibly during a struggle.
But the defense team — led by a prominent civil rights lawyer, Norman Siegel, and a criminal
defense lawyer, Earl S. Ward — has challenged the methodology as unreliable, citing past problems
with STRmix’s computer programs, as well as the minuscule amount of material used for analysis.
And this month, the judge in the case, Felix J. Catena, agreed to a so-called Frye hearing on the
admissibility of the STRmix program, citing the extremely small amount of biological material.

The hearing is scheduled to begin on Monday in nearby Canton; its outcome may be felt in Potsdam
— a riverfront village that has been shaken and divided by Garrett’s murder — as well as further
afield, as prosecutors seek more methods to convict those charged and defense lawyers seek more
ways to exonerate them.
New computer programs have allowed analysis of many samples — often with mixed and multiple
individuals’ DNA — that were previously considered inconclusive. Still, there is scientific debate
about the use of such low-template DNA (which refers to how much DNA is recovered, sometimes
as little a few cells) and low-copy-number DNA analysis (the process of using extra amplification
of very small samples).
In the case of the STRmix method, a Michigan court allowed expert testimony on its use and its
statistical evidence in December, but the program has faced only one Frye hearing in New York
before, in a sexual assault case in Niagara County this year, where the analysis was allowed.
In the Phillips case, the small amount of material recovered has caused the defense to fight its
introduction at trial.
“The use of STRmix and the interpretation of STRmix of low-template DNA is inappropriate,
unreliable and leads to a wrong conclusion,” Mr. Siegel said in an interview on Friday.
The most immediate effect of the hearing may be on Mr. Hillary, who has steadfastly maintained his
innocence, suggesting that the prosecution may be driven in part by his race: Mr. Hillary, 42, is
black, while the vast majority of St. Lawrence County is white, as was Garrett. The St. Lawrence
County district attorney, Mary Rain, has denied that Mr. Hillary’s race is a motivating factor.
But his assertion of an unjustified prosecution has been bolstered by the lack of hard evidence: The
police have said in earlier testimony that no fingerprints, no witnesses and no hair or tissue samples
link him to the crime. Mr. Hillary, who still lives in Potsdam with his girlfriend and their five
children, has also been backed by a public campaign to press his innocence.
At the same time, Ms. Rain’s competence has been questioned after a series of professional
missteps that led to a no-confidence vote by county legislators in April.

The Frye hearing is the latest legal chapter in a case that stretches back almost five years to
Garrett’s murder, which occurred on a rainy afternoon in a run-down apartment building along one
of this village’s main thoroughfares.
Mr. Hillary, the coach of the men’s soccer team at Clarkson University here when Garrett was
killed, was a former boyfriend of the boy’s mother, and a suspect from the beginning. He was not
charged until 2014, after Ms. Rain, a Republican who had promised to bring new scrutiny to the
crime, was elected. (Her predecessor, Nicole Duve, a Democrat, had declined to bring charges,
citing a lack of evidence.)
The first indictment against Mr. Hillary was thrown out for prosecutorial misconduct, and though a
second indictment was later secured, the judge in the case asked to be recused earlier this year after
filing an ethics complaint against Ms. Rain.
Ms. Rain has enlisted William Fitzpatrick, a well-regarded district attorney from the Syracuse area,
to assist in the prosecution. Ms. Rain and Mr. Fitzpatrick, citing a judge’s order, declined to
comment on the case or the Frye hearing.
A spokesman for STRmix also declined to comment on the case. Last year, a coding error in the
STRmix program was reported to have affected probabilities in dozens of cases in Queensland,
Australia.
Dr. John Buckleton, a creator of STRmix, is expected to testify during the hearing in Canton.
Mr. Hillary is also expected to attend.