Tuesday, 11 December 2018
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Prosecution rests case, Judge denies defense motion to dismiss charges

The prosecution called its final witness on the morning of Monday, November 19th, before resting its case for sexual assault charges against Tony Cercy.

Before the defense began calling its own witnesses, it requested that the jury be excused from the room. Away from the jury, Denver-based attorney Jeffrey Pagliuca argued that the prosecution had not met its burden of evidence during its case and asked that the charges be dismissed.

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Pagliuca argued that the District Attorney’s office was cherry picking from Wyoming State Statute regarding its interpretation of the charges, and of specific allegations made in the case.

The motion was ultimately denied.

In February, Cercy was found not-guilty on one count of first degree sexual assault and one count of second degree sexual in Natrona County after a jury could not reach a unanimous verdict on a charge of third degree sexual assault.

It is that charge of third degree sexual assault that Cercy faces in the facilities of the Hot Springs County District Court where it was moved after a change-in-venue request. It is presided over by the Natrona County District Court.

The alleged victim in the case claims that after a day of drinking with friends at the lake in June of 2017, she attended a party at the Cercy home near Alcova Reservoir. The woman claims to have passed out at the party and awoke in the early morning hours the following day to find Cercy performing oral sex on her.

The jury heard from an expert witness in the last leg of the prosecution’s case. Natrona County District Attorney Michael Blonnigen called a forensic scientist to the stand who identified himself as one of the initial developers of a specialized analysis software used in forensic investigation, specifically in analyzing DNA mixtures.

During his time on the stand the forensic scientist told the jury of his background, and the operations, reliability, and techniques used by the software.

He told Blonigen that some analysis would be required from a human, including estimating how many DNA profiles might be in a mixture. However, he said that even if the human being were to guess wrong on the number of contributors to a DNA mixture the results would actually show a more conservative.

The witness also said that laboratories using the software must be trained to use the software, or the lab would not be allowed to purchase it.

During cross-examination, Denver-based defense attorney Pamela Mackey confirmed with the forensic scientist that the software could help analyze the identity of contributors to a DNA mixture, but not the relative times and ways that the DNA might have been deposited.

Questioning became marginally contentious as Mackey walked through individual questions that the software was not intended to handle, including when the DNA was deposited, through what means, or what bodily fluids they may have come from.

Eventually the scientist said that he didn’t know how he could further expand on his previous answers, saying “it doesn’t boil the water.”

He declined to answer when asked if he would be surprised to find an owner’s DNA on their own couch, saying that he did not want to speculate and that he was not prepared to discuss DNA transfer or persistence as he is not familiar with the most recent studies.

Mackey also asked if the software-analyzed DNA mixtures that were taken from the scene vs. mixtures created in the lab, to which the Forensic Expert said that he hoped that they were not created in the lab. Mackey persisted in the line of questioning before the witness said that he simply didn’t understand the question.

Mackey clarified by saying that there was no way for the software to tell if DNA taken from a small piece of cloth a few inches square could determine if the individual profiles were taken from different areas of the small sample. The sorensic scientist confirmed by sayin that the software worked from electronic input.

The defense called their first witness just after 10:00 am. First up was an expert witness who identified himself as a College Professor in clinical psychology, who has worked with sexual assault victims as well as perpetrators.

The witness’s testimony had been grist for discussion at a hearing in October before the second trial and again while the jury was out for a scheduled morning break on November 19th.

Pagliuca asked the judge of testimony regarding published work by the witness regarding “11 pathways of false reporting.” It was determined in October that the testimony would not be allowed, however Pagliuca said that a Psychologist who testified for the prosecution had opened the door to the testimony.

The judge ultimately ruled that the 11 pathways testimony would not be allowed, and was out of scope for the proceedings. He did however allow that the witness could testify that sometimes a reticence to report by some victims could be prompted by inaccurate accusations.

Blonigen asked the court to make sure that the college professor’s testimony be carefully limited to be within the bounds of court order, to which Pagliuca responded that in over 30 years of his job he had never violated a court order and had no intention to do so “especially in Thermopolis, Wyoming.”

The defense also called a married couple to the stand, both of whom say that they were in contact with both the accuser and Cercy on the night of the alleged incident.

Both witnesses identified themselves as parents of a man who had been previously identified as a best friend of the alleged victim. They also said that they owned a cabin that was in close proximity to that of the accuser and that they had seen her on the day in question and the following day.

Each of the couple said that they had known the accuser through their son for a long time. They also identified themselves as being close friends of the Cercy family, the husband confirming that he had travelled with the Cercys before on vacation.

Both witnesses say that the accuser had come with their son at around dinner on the evening before the alleged incident. Both described the girl as being “upset” and intoxicated. The wife said the girl had been having relationship troubles with her then-boyfriend. The accuser is said to have eaten and had water at their home before leaving with her peers for another location.

Both individuals claimed to see the accuser the next morning boarding her family’s boat. The father alleged that the accuser had waved at the group as the boat departed the docks.

The couple was also asked about how the allegations of that night were revealed to them as well as their discussions afterward with both the father of the accuser and Cercy and his wife.

The husband said that he had first received a phone call from the father of the accuser asking what had happened at reservoir over the previous weekend. The husband reported that he told the alleged victim’s father that the accuser had been drinking heavily the day previous and had been passed out at the beach. It was then the husband says he first heard the allegations that Cercy had “molested” the alleged victim.

The husband said that he was shocked to hear the accusation, whereupon he called and told his wife. He is also said to have contacted Cercy, told him of the allegations and given the phone number of the accused’s father to Cercy.

The wife is also said to have contacted the accuser’s father after hearing the news from her husband. After telling the father that she did not know what happened after the girl had left their cabin, she said the call was quickly disconnected. She then said that she called her husband back asking the husband to contact Cercy and that she would contact Cercy’s wife.

On cross-examination Blonigen asked the wife if the police had unsuccessfully tried to call her several times during the investigation of the case, to which the wife said no.

She said that she has kept the same number for years and that if the investigators couldn’t get a hold of her it was either a lie or incompetence on their part.

Blonigen also questioned the wife about text messages she sent to her son while the son was being questioned by police. Blonigen quoted one of the texts as reading “get out of there.”

The wife said that she had bad experiences in a previous police investigation which has made her distrustful of police.

The defense called another witness who was a guest of the Cercy’s at the party on the night in question. The guest testified that she was a long-time friend of the Cercy family and has a trailer on Alcova Reservior.

The Guest said that their family had spent the day on the lake, and while she didn’t know the accuser she testified that she had seen the girl passed out on the back of a boat at the Sandy Beach Boat pull-up in the hours before the Cercy party.

She also said that she attended the party with her husband and children and that a group of younger party-goers were leaving as the guest and her family arrived.

She further testified that she had seen the accused passed out on the couch during the party and at one point said that a dog belonging to the Cercy family had licked the accuser’s face, prompting the accuser to roll over and brush the dog away. The witness expressed having concern for the girl both at the beach and at the party.

She further testified that she had not seen Cercy’s wife drinking that night.

The witness was also questioned about a video that has been played for the jury several times showing the accuser passed out on a couch with people shouting in the background. The voices do not seem to stir the woman. Two of the voices have been identified as Cercy and his wife. Cercy was said to be heard shouting “hey hottie” and his wife to be shouting “shut the f— up.”

The witness said that she had not known the video was being taken at the time.

On cross-examination Blonigen asked the witness if she was a “vocal supporter” of Cercy, asking if the woman had made any social media posts in support of him. The witness clarified that she had not made any public comments, but had posted on her own private Facebook wall.

Blonigen also asked about the video which shows the young girl passed out on the couch, pointing out that the voices were poking fun of the girl.

“How old are you?” Blonigen asked, after asking the woman about the video, to which the witness described she was in her forties. She said that she thought the verbal calls were “harmless” and that nobody was physically touching the alleged victim.

Blonigen then confirmed that the witness had expressed concern for the victim earlier in her testimony, but asked if she was so concerned why she had left the victim on the couch and “vulnerable.”

The witness said that she did not know what she could have done.

On redirect, Pagliuca confirmed that among other guests at the party were an off-duty police officer, a fire-fighter, a teacher and a respiratory therapist.

Pagliuca also confirmed the witness, claiming that she felt the shouting had been “good natured fun.”

The defense team’s next witness was a research scientist who had experience in field experimentation.

The witness testified that she was asked to design an experiment for the defense to answer two questions: Could the allegations have happened as described without waking the Cercy family dogs? Would the barking of the dogs have awakened the two women who said they were sleeping in the master bedroom?

The witness described a field experiment that was designed and later implemented, in an attempt to answer those questions.

According to the witness, two actors were hired to recreate the events of the allegations in the actual Cercy home. The dogs were kept in the master bedroom where the two actual women from the night of the allegation would go to bed. Cameras and audio equipment were set up at various locations around the home to document the behavior of the dogs in relation to the actors in the living room.

The research scientist went on to testify that a “script” and “choreography” was created based on the alleged victim’s video-recorded interview with police.

Four dogs were alleged to have been in the Cercy home on the night in question. Those dogs were taken into the master bedroom with Mrs. Cercy, and a woman who is said to have been a family friend that was also sleeping in the bedroom on that night. The women were asked to go to sleep and were video taped to ensure that the dogs had not been interfered with.

At the same approximate time as the alleged attack, the actors carried out the “script” in the living room, and the dogs’ reactions were recorded.

The jury was recessed for lunch before defense questioning of the witness was completed.

The trial will resume this afternoon.

Source: https://oilcitywyo.com/court/2018/11/19/prosecution-rests-case-judge-denies-defense-motion-to-dismiss-charges/

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