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CANTON — Murder suspect Oral “Nick” Hillary will not have DNA evidence brought against him at his Sept. 6 trial.

The decision, rendered by presiding Judge Felix J. Catena late Friday morning, followed a July 25 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. The trial is scheduled to start Sept. 6.

Judge Catena granted the defense’s motion to keep prosecutors from calling an expert witness to testify for their case regarding any conclusions reached by the use of STRmix, “as the prosecution cannot lay a foundation for the introduction of the evidence that had not been internally validated.”

He also granted the defense’s motion to keep prosecutors from “offering expert testimony as to any statistical results obtaining the random match probability on the composite minor component of the (DNA) mixture.”

“Beginning in 2013, the New York State Police crime lab contacted Cybergenetics, Inc., to run the data obtained from the fingernail scrapings through their probabilistic genotyping software program called TrueAllele. The results were inconclusive,” Judge Catena wrote. “Nonetheless, the defendant was indicted for the victim’s murder in 2014 and the New York State Police crime lab sent its data at the behest of the prosecution to the Institute of Environmental Science and Research which ran it through their probabilistic geno­typing software program called STRmix.”

St. Lawrence County District Attorney Mary E. Rain did not return a request to comment.

Phone messages left for Onondaga County District Attorney William J. Fitzpatrick, who is assisting in the prosecution of Hillary, were not returned.

A member of Hillary’s defense team, Peter A. Dumas, of Dumans & Narrow P.C., said the judge made the right decision.

“We are pleased with the court’s decision and we believed it is the correct decision because it recognizes that what happened here was unreliable and improper,” Mr. Dumas said.

In his ruling, Judge Catena wrote that there was a lack of internal validation by the state police crime lab, as admitted by one of the three developers of STRmix, Dr. John S. Buckleton, precludes the use of STRmix results.

“It is clear that the New York State Police crime lab had not gone through the accreditation process and, thus, did not have the ‘trained (personnel) and expertise to accurately employ’ STRmix,” Judge Catena wrote. “The People conceded this stating ‘there [were] no internal validation studies by the State Police regarding STRmix.’”

In addition to the exclusion of the STRmix results, Judge Catena pointed to a statement made by Dr. Buckleton when ruling that the random match probability would also have to be kept out at trial.

“.. The results produced in this case are unreliable based upon Dr. Buckleton’s testimony that it cannot adequately account for the absence of defendant’s alleles in the composite profile,” Judge Catena wrote. “As Dr. Buckleton stated, ‘the exact difficulty that we’ve come upon in this case and certain circumstances that the Random Match Probability is not conservative and doesn’t do a fair job for the defendant (Judge Catena’s emphasis), and this is one of those circumstances.’”

“... To allow such evidence would be unduly prejudicial to the defendant,” Judge Catena wrote. “Neither STRmix nor the RMP results may be used in this case.”

Members of the Potsdam Police Department have previously acknowledged in depositions that there is no other physical evidence that ties Hillary to the scene, and the first two DNA tests, by the New York State Police laboratory and by Dr. Mark Perlin of Cybergenetics, Inc. in Pittsburgh, Pa., could not link Hillary to the scene.

To read the full decision by Judge Catena visit: https://www.scribd.com/document/322251055/08-26-16-Decision-and-Order-DNA-Analysis-Admissibility#from_embed