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The high-profile murder trial of a man accused of strangling the son of his ex-girlfriend is scheduled to begin after Labor Day in Upstate New York.

But prosecutors will have to proceed with their case against Oral Nicholas Hillary without their controversial DNA evidence, since allowing it would be “unduly prejudicial to the defendant,” a judge ruled today.

The DNA had been contested at a pair of hearings this summer, in the lead-up to the Sept. 6 start of the second-degree murder trial, in which Hillary is accused of strangling 12-year-old Garrett Phillips.

The mixed DNA sample under the fingernails of the boy’s left hand are a crucial point in the case.

The focus of the summer’s evidentiary hearings was STRmix, a probabilistic genotyping program designed to sort through and interpret complex mixtures of DNA. John Buckleton, the developer of the software, had told the court he had assessed the complex genetic mixture under the boy’s fingernails – and determined Hillary was in there.

However, Judge Felix Catena disagreed with the stated methodology in his decision today, ruling he would not allow Buckleton to “pick and choose data from different ‘reliable sources,’” for the prosecution’s case, since the science had not been proven within the state’s crime labs.

“Here, the lack of internal validation by the New York State Police crime lab, as candidly admitted by Dr. Buckleton, precludes use of the STRmix results,” the judge writes. “Neither the STRmix nor the (Random Match Probability) results may be used in this case.”

The judge also cited an email in which District Attorney William Fitzpatrick first contacted Buckleton in November 2015. The District Attorney apparently asks for validation of DNA results that had already been reached, since the DNA profile “appears to be consistent with… the obligate alleles (7) being consistent with the defendant,” as the prosecutor writes.

“I am hoping that you or someone you recommend might be able to provide a statistical weight to the results using a likelihood ratio or some other method,” writes Fitzpatrick. “I can provide the analyst’s report and the electropherograms if you decide to take a look.”

A spokesman for Fitzpatrick did not return a call from Forensic Magazine. Buckleton could not be reached.

Clinton Hughes, an attorney with the Legal Aid Society which represents Hillary, told Forensic Magazine that the judge wanted reproducible science beyond what had been offered at the evidentiary hearings.

“The judge obviously is concerned when you’re dealing with a challenging sample, and you have inconsistent results,” Hughes said.

It remains unclear whether other DNA evidence will be used at trial.

However, a competing probabilistic genotyping software called TrueAllele was first consulted on the case. Every sample distanced Hillary from the scene – including the fingernail scrapings, according to the TrueAllele findings.

TrueAllele was used by the New York State Police crime lab for several years. But it was later enmeshed in allegations and counter-allegations involving accreditation, and a lawsuit alleging civil-rights violations.

Hillary, 41, was indicted for Phillips’ 2011 murder in 2014, and the case has garnered significant media coverage, due to racial tension in the community of Potsdam, just a few miles south of the border with Canada.

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