Schenectady

For the second time in four years, Schenectady County prosecutors are trying to convict Jeremiah Hamilton of the Sept. 13, 2008 murder of Jerome Cannon in Hamilton Hill.

This time they are missing a key piece of evidence — the murder weapon.

"The gun is gone," Hamilton's attorney, Frederick Rench, told the jury in his opening statement before state Supreme Court Justice Michael Coccoma. "You want to see the gun used to shoot Jerome Cannon? You're not going to see it. Why? The police threw it away."

Rench told the Times Union he understands that Schenectady police lost the evidence after Hamilton, 31, was convicted at trial in 2012. A jury found the reputed Bloods gang member from the Bronx guilty of second-degree murder, attempted murder, weapon possession and reckless endangerment. He was serving 40 years to life in state prison. Then in 2015, the Appellate Division of state Supreme Court reversed the convictions because of an error during jury selection by since-retired Schenectady County Judge Karen Drago.

Rench said days after the shooting, police found the .25 caliber weapon used in the Cannon murder on another man. Rench said he believes the gun was destroyed by police after the first trial.

Rench told jurors the prosecution's case contains shell casings, a bullet and a bullet fragment but no other physical evidence tying Hamilton to the crime. He said prosecutors have no fingerprints, DNA or video or audio evidence. It was built on the word of cooperating witnesses with no morals and zero credibility who agreed to testify to help themselves in some way.

"You would not take directions to McDonalds from these people," Rench said.

District Attorney Robert Carney could not be reached to respond to Rench's comments.

The conviction of Hamilton was overturned because Hamilton's previous attorney, Mike Horan, had to use a peremptory challenge to keep a potential juror who knew two witnesses, including the lead investigator, off the case. Horan ended up using all his peremptory challenges, which allow lawyers to block a potential juror from sitting on a case without giving a reason. The Appellate Division deemed Drago's mistake a reversible error because the juror should have been excused without a peremptory challenge being used.

The retrial began Tuesday, following several days of jury selection. Assistant District Attorney Peter Willis quietly explained the sequence of events he alleged led to the murder as Hamilton sat and listened clad in a dress shirt.

Willis told jurors it was as follows:

On the night of the killing, Hamilton, who was visiting Schenectady for a few weeks, was playing dice with a group of people on Lincoln Avenue. The group included a man named Victor Toomer. Around 9 p.m., dice became stuck in a crack. Hamilton, who lost money based on Toomer's rules of the game, started to argue with Toomer and then punched him in the face. Toomer and three or four other men chased after Hamilton and tore his shirt as Hamilton fled. Hamilton yelled, "I'll be back." Hamilton ran to Grant Avenue, where his friends were hanging out. There, an angry and embarrassed Hamilton was handed a .25 caliber gun.

He went to confront Toomer's group.

Cannon was dispatched there to watch his back. Upon seeing Toomer's group, Cannon recognized Toomer as a friend. He tried to act as a peacemaker. Hamilton stayed across the street pacing. Suddenly, Hamilton ducked behind a car and then fired three shots.

"Out of nowhere, he decides the effort of peace is going on too long," Willis told the jury. "What does he do? He pulls out that .25 (caliber) and he starts shooting."

Willis said Toomer grabbed a .22 caliber gun off the fallen Cannon and fired back at Hamilton, who fled to Grant Avenue and escaped.

Hamilton was arrested in Pennsylvania and charged with the murder.

"(Hamilton) was embarassed," Willis said. "He was angry ... he was not going to stand for it."

Willis stressed that Hamilton sought to exact revenge because he was run off the block over a beef during a dice game.

"(Cannon) died trying to protect the defendant," Willis said. "But the defendant didn't want to be protected back on Sept. 13, 2008 ... he wanted to shoot and he wanted to kill and that's what that man did."

The trial continues Wednesday.

rgavin@timesunion.com • 518-434-2403 • @RobertGavinTU