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Judge: Potsdam police privy to Hillary’s deposition

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POTSDAM — A federal judge has ruled that Oral “Nick” Hillary’s upcoming deposition in a civil suit against village police can be shared with law enforcement investigating the murder of 12-year-old Garrett J. Phillips.

Mr. Hillary had sought a protective order preventing the deposition from being provided to investigators, contending that investigators intended to use his testimony in an attempt possibly to incriminate him criminally in the youth’s death.

Mr. Hillary filed state Supreme Court action in Canton in September 2012, claiming police detained him illegally and damaged his reputation by making statements implicating him in the death of the youth. The lawsuit was moved to U.S. District Court, Syracuse, in November 2012 because Mr. Hillary further is claiming that his federal constitutional rights were violated.

Mr. Hillary claimed that testimony he voluntarily provided in a six-hour hearing before the suit was filed was given to an investigator, who used the testimony to conclude that Mr. Hillary had allegedly provided numerous “deceptive” answers to village attorneys’ questions. Mr. Hillary’s attorney, Mani C. Tafari, Queens, had argued that Mr. Hillary did not know at the time of the earlier hearing that he was still a suspect in Garrett Phillips’s strangulation death and never gave up his Fifth Amendment rights against self-incrimination.

Village attorneys countered that by answering questions in the hearing, Mr. Hillary ceded his rights. They also maintained that two officers investigating the murder, who are also defendants in the civil action, will be allowed to be at the deposition, and to expect that they not be allowed to use any evidence obtained from it possibly to assist with the homicide investigation is “absurd.”

In a decision Thursday, Magistrate Judge David E. Peebles denied Mr. Hillary’s motion for a protective order, stating, 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 Peebles ruled that the village’s attorneys are able to ask questions about events surrounding the youth’s death during the deposition and investigators will be able to receive a transcript. The judge had ruled earlier that the deposition could be videotaped, something Mr. Hillary had sought to prevent.

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