CANTON — To “avoid even the appearance of impropriety,” the executive committee of a Rochester-based prosecutorial misconduct nonprofit has formally requested a special prosecutor be appointed to investigate the murder of Garrett J. Phillips.
Garrett, 12, was strangled to death Oct. 24, 2011, inside his residence in Potsdam, where he lived with his mother Tandy L. Collins and younger brother Aaron Collins.
In an open letter sent to the St. Lawrence County District Attorney’s Office on Monday afternoon from It Could Happen to YOU, Executive Director William Bastuk and three board members requested the special prosecutor appointment on behalf of their organization. For a decade, ICHY has worked nationally, seeking justice for those wrongfully prosecuted through the American criminal justice system.
The north country has long followed the case that brought Oral “Nick” Hillary to trial for Garrett’s slaying, with residents seeing Mr. Hillary’s acquittal in 2016 after a bench trial before county Judge Felix J. Catena. Multiple lawsuits have been filed by Mr. Hillary against St. Lawrence County, former District Attorney Mary E. Rain, state police and the village of Potsdam over his arrest and prosecution. And a new lead, not involving Mr. Hillary, received by police in the fall of 2018 surfaced last spring, just three months before filmmaker Liz Garbus’ documentary “Who Killed Garrett Phillips?” premiered at a festival in the nation’s capital and aired on HBO.
Leads formulated in the last two years have not resulted in any “actionable information,” District Attorney Gary M. Pasqua said earlier this month.
“We’ve been involved in watching the unfolding of this investigation, or lack thereof, for quite some time,” Mr. Bastuk told the Times on Monday. “We feel that with everything else going on, with the Black Lives Matter movement and police misconduct, this case is certainly tied into it — a Black man being wrongfully prosecuted. It’s very consistent with what’s taking place nationally.”
Mr. Hillary, a Jamaican native, graduated from St. Lawrence University, Canton, and served as an educator and as head coach for the men’s soccer team at Clarkson University, Potsdam. He lived in the north country for more than a decade before moving out of the area after years of court proceedings began.
ICHY’s request for a special prosecutor is based on three concerns related to the nearly nine-year homicide investigation that has yet to result in any convictions related to Garrett’s death.
The letter first outlines ICHY’s concern about the absence of an independent investigation, given the lead investigative agency is the Potsdam Police Department, which is “objectively not a disinterested party,” according to ICHY, because the former and current chiefs are being sued by Mr. Hillary. Additional pending allegations in federal court describe equal protection violations, as well as “a conspiracy to deny the acquitted defendant of his Constitutional rights,” particularly in connection to a strip search and photograph warrant served on Mr. Hillary by local law enforcement in the days following Garrett’s death.
A second concern relates to the role of the two DA’s office investigators, who both were active in Garrett’s homicide investigation. DA Chief Investigator Daniel W. Manor Sr. has served in that role since before Garrett’s murder and continues in that investigative capacity.
ICHY is additionally hoping the appointment of an independent investigative body will assure the public that any investigation or prosecution is being completed with integrity.
“(Garrett’s) death has been used as a campaign platform relating to the dissolution of Potsdam police vote in November 2011, and a major issue in a race for District Attorney by your predecessor Mary Rain in November 2013,” the letter, addressed to Mr. Pasqua, reads in part. “The appointment of a Special Prosecutor will make evident that the investigation will be handled with the objectivity and independence Garrett, his family and the community deserve.”
Less than a month after Garrett’s death, a proposal to dissolve the village of Potsdam, then 170 years old, was voted down after two years of debate and discussion about the implications of dissolution, which would have involved the outsourcing of local law enforcement to the county or other agencies, as described in 260 pages of dissolution plans.
Former DA Rain partially ran her 2012 DA campaign on a commitment to prosecuting Garrett’s killer. After Mr. Hillary’s September 2016 acquittal, Ms. Rain said she would not continue to investigate Garrett’s murder, that she was “100 percent” sure Mr. Hillary was responsible.
In 2018, Ms. Rain was suspended from practicing law in New York for two years based on complaints of misconduct reviewed by the state Third Judicial Department. The court ruled Ms. Rain violated 24 distinct rules related to professional misconduct charges filed in March and July 2017. Some of those violations stemmed from Ms. Rain’s conduct during the investigation into Garrett’s murder and Mr. Hillary’s trial.
“He was murdered in 2011, and one would think the murder a young white boy would be figured out by now,” Mr. Bastuk said. “After Hillary was acquitted by the judge, it’s almost like the case has been swept under the rug.”
Mr. Pasqua said he does not have a comment on the request for a special prosecutor at this time. He previously told the Times he considers the case open, “simply because no one has been convicted.”
ICHY’s latest criminal justice reform agenda for 2020 through 2022 involves eight action items in multiple states, including advancing the development of New York’s proposed Commission on Prosecutorial Conduct. The commission formation process began more than five years ago, and was halted in January after a state judge ruled the proposed commission would violate the state Constitution by altering what body has power over attorney discipline.
The legislation that would have created the commission, passed in the state senate and assembly and signed by Gov. Andrew M. Cuomo in March 2019, has undergone several revisions to address the separation of powers violations determined by court rulings. DAs in Albany and Queens counties, as well as the state District Attorneys Association have challenged the legislation in state Supreme court, citing concern that the commission would interfere with the rights and core functions of DA offices and give unconstitutional authority to the state judiciary.
ICHY has been a driving force behind the proposed commission, which is again being discussed by the state senate codes committee this week.
The organization’s letter to Mr. Pasqua is the first of its kind regarding Garrett Phillips’ case, Mr. Bastuk said, adding that the north country deserves complete investigations, especially investigations into the murder of a child.
“We’re about justice,” Mr. Bastuk said. “And there are still more questions.”