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2 1/2 years after garrett phillips skated home for the last time, d.a. mary rain was finally putting the case before a grand jury. her key piece of evidence? if i make a left out the parking lot nick hillary s own words from his video deposition for his lawsuit against the potsdam police. no one can talk about grand jury arguments, but the civil deposition, safe to say, was very important. extremely important. we couldn t have put him in the places where he put himself. on may 15th nick hillary was indicted and arrested. 100% innocent. charged with second-degree murder, he was led away in handcuffs by lead investigator mark murray. no ruckus? no to-do? no ruckus, no to-do. just us walking nick into the station. nothing, however, has been ordinary in this extraordinary case. five months later, a judge threw out that indictment on the grounds of prosecutorial misconduct. the judge in the case decides that mary rain acted ....
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if you turned left out of the parking lot to go home to your apartment, what route did you take? objection. i cannot recall. reporter: when it was over, tom mortati had a gift for the new d.a., mary rain, more than six hours of nick on tape, under oath. everything he said. everything he couldn t recall. so rare from a prime suspect who was not talking to police. i ve always described this as the o.j. case backwards. you know, in o.j. you had a criminal trial and then there was a civil case. and here, it the exact opposite happened. reporter: you have regrets about going the civil route in the midst of this criminal case? i regret that mr. hillary was targeted due to his race. and i have no control over that. that is the only regret i have in this entire situation. reporter: d.a. rain, who had campaigned on getting justice for garrett, now believed she had enough evidence to take to a grand jury. but in a perplexing case that ....
Jumpsuit, put in a van and taken away. i would fight and i will continue to fight until i don t have anything left inside of me to fight just the same way i m fighting right now. reporter: the trial was shaping up as a battle between seasoned, successful attorneys. the venerable team of earl ward and norman siegel for the defense. for the state, d.a. mary rain asked bill fitzpatrick, a renowned prosecutor from another county, to take the lead in court. so you bring in fitzpatrick from down in syracuse for what reason? well, bill fitzpatrick has over 75 homicide prosecutions himself. he s been a prosecutor for over 24 years, and i ve been a prosecutor for over two. reporter: almost immediately, a courtroom bombshell. ten jurors had been quickly selected, all white, when nick and his defense team made a shocking announcement. they were opting for a bench trial, letting judge felix catena decide nick s future. ....