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POTSDAM — There has been a swap in defense attorneys for the village and members of the village police, current and former, in the two lawsuits against them by Oral “Nick” Hillary claiming his civil rights were violated and that he was maliciously prosecuted.
Mr. Hillary, formerly of Potsdam, now living in Brooklyn, was acquitted Sept. 28, 2016, of the 2011 murder of 12-year-old Garrett J. Phillips following a bench trial in St. Lawrence County Court by Presiding Judge Felix J. Catena.
Albany attorney Thomas J. Mortati, who was representing the village of Potsdam since the first suit was filed against the municipality, stepped aside at the beginning of the month after taking a new job with the Albany plaintiff firm Martin, Harding Mazzotti LLP.
Gregg T. Johnson, of Lemire, Johnson Higgins, LLC, Malta, is now representing the municipality in the two cases.
Mr. Johnson’s areas of practice include civil rights law, employment law and municipal law. His litigation practice includes representing private and public sector clients before federal courts, administrative agencies, state courts and appellate courts in cases involving civil rights claims, law enforcement matters, discrimination, wrongful discharge and unlawful workplace harassment and retaliation, according to his firm’s webpage.
“We are wading through thousands and thousands of pages of material as we speak,” Mr. Johnson said in a phone interview Tuesday. “We obviously have two civil cases and an outstanding notice of claim that we are still dealing with. Much of the 2012 lawsuit has already been disposed of.”
Mr. Johnson said his firm’s approach to the case would not differ from Mr. Mortati. He called the case “absolutely defensible,” and both he and Mr. Mortati said they would continue to work together on the case.
“It so happens that I know Tom since he and I were in law school, …” Mr. Johnson said. “So I know him well and I have met with him on this case and I will do so in the future as needed. Whatever insight that Tom has, he will continue to share with me as we go through the defense of the case.”
Mr. Mortati said that an additional bonus for Mr. Johnson is that both civil cases have been postponed, giving him more time to review them.
Mr. Hillary’s 2012 lawsuit for claims that his civil rights were violated during the 2011 investigation was scheduled to go to trial July 10 in Albany, but United States Northern District Court Chief Judge Gary L. Sharpe, who will be presiding over the case, granted a stay of the case June 15 for what he wrote were “overlapping issues” with a second civil suit Mr. Hillary filed for malicious prosecution this year.
Mr. Mortati said after the case was stayed by Judge Sharpe, it will likely be pushed back for three or four years before seeing a trial date.
Additionally, a motion to dismiss the charges against the state police, who were also named in the 2017 suit, was filed in July by Assistant Attorney General Maria Lisi-Murray, who represents the agency.
“On average, it takes 12 to 16 months to get decisions on those,” Mr. Mortati said. “And then as a result of that getting filed, the rest of the 2017 case was put on hold because if you have a defendant who hasn’t even answered a move to dismiss, you don’t want to have to drag them through a year or two of discovery only then to have them possibly get dismissed after all that, when they shouldn’t have had to waste the time, effort and energy, and money, of course, doing that.”
Potsdam Village Police Chief Mark R. Murray, one of the named defendants in the two civil cases, said he met with Mr. Johnson on Nov. 15 and was glad to see that the passion that Mr. Mortati had for the case has carried over.
“That is the one thing that I am very grateful for; not only Tom, his law firm , but our new law firm, has conveyed to us how much passion they have for this case and how strongly they feel about the actual case itself,” Chief Murray said. “They are going to examine the facts of the case and ultimately a judge is going to decide whether any of it holds water or not.”