By ANDY GARDNER

CANTON -- The judge in the Oral “Nick” Hillary murder trial could rule as early as Monday on a motion for a mistrial made by the defense team. If the trial isn’t ended by such a decision, the prosecution’s case will continue when testimony resumes at 10 a.m. in St. Lawrence County Court.

Hillary is being tried for second-degree murder, accused of slaying 12-year-old Garrett Phillips on Oct. 24, 2011 in Potsdam.

The defense moved for a mistrial for the second time in as many days on Wednesday, claiming their case has been prejudiced by the prosecution withholding knowledge of a man now serving time in state prison who claims to have seen John Jones, a St. Lawrence County Sheriff’s deputy, at the murder scene shortly before Phillips’s death.

Both Jones and Hillary had previously dated Phillips’s mother, Tandy Cyrus Collins.

Onondaga District Attorney William Fitzpatrick, who is assisting St. Lawrence County DA Mary Rain with the case, said in the opening statement that much of their case rests upon security camera footage they allege shows Hillary leaving the Potsdam High School parking lot on the day of the murder and going to kill Phillips. Although they don’t have any hair, fiber, DNA, fingerprints or eyewitnesses tying him to the scene, Fitzpatrick says they can show circumstantial evidence that proves he was the perpetrator. He called a security camera at Potsdam Central School “the people’s most important witness.”

Defense attorney Earl Ward said in his opening statement that Hillary’s daughter saw him at home when the killing took place.

“He can’t be in two places at once,” Ward told the court.

Although the judge has ruled it won’t be admitted as evidence, the prosecution had tried to enter DNA from Hillary supposedly collected from beneath Phillips’s fingernails during an autopsy. When the judge made his ruling during the first days of the trial, he said the method used to match the DNA samples isn’t up to the state’s standards for admission as evidence at trial. The prosecution had said they didn’t get a chance to make a foundation for using the evidence, which the judge wrote was contradicted by a telephone conference and talks on the record in court leading up to the trial.

Judge Felix Catena is serving as the judge and jury in the matter. Hillary, on the advice of his attorneys, waived his constitutional right to a jury trial and opted for a bench trial after one day of jury selection where 10 jurors were seated.