Attorneys in a Casper businessman’s sexual assault trial agreed on a jury Monday, with the defense offering its first public glimpse at its strategy.
Pamela Mackey, a Denver attorney who is representing Tony Cercy in the case, said the defense team would deny sexual contact occurred between Cercy and a 20-year-old woman who told authorities Cercy assaulted her at his Alcova Lake house this summer.
“This is not a consent case,” Mackey told potential jurors in Natrona County District Court. “The defense is it did not happen.”
The alleged victim told authorities she awoke to Cercy performing oral sex on her. Cercy, who faces three felony charges, has pleaded not guilty.
No change of venue
Judge Daniel Forgey began the morning by denying a request by Cercy’s lawyers to move his sexual assault trial prior to jury selection.
Forgey said it was not evident that media coverage of the case had prejudiced public opinion to a degree that would require the case to be tried in a different county.
One of Cercy’s three defense attorneys, Jeff Pagliuca, told the court that media coverage, which he characterized as extensive, slanted and factually inaccurate, made it impossible for Cercy to obtain a fair trial in Natrona County.
As part of the argument, he said an August article published in the Star-Tribune cited an incorrect number of phone calls made by the woman following the alleged assault.
During the court’s lunch break, a Star-Tribune reporter approached Pagliuca to ask about the alleged inaccuracy. Pagliuca said he did not have time to talk. He likewise declined to speak after the court adjourned Monday evening.
The Star-Tribune has a policy of correcting factual inaccuracies when they occur. Cercy’s defense team has never requested a correction from the Star-Tribune.
Pagliuca during the hearing also cited alleged inaccuracies in other media outlets during what he characterized as a “small recap” of press coverage relating to the case.
“All we want, your honor, is a fair chance here,” Pagliuca said.
District Attorney Mike Blonigen said the case had received extensive publicity. He went on to say that the court sees “several cases...every year,” that receive as much media coverage as Cercy’s has.
In ruling against the motion, Forgey said reporting cited by Pagliuca was generally factual in nature. Forgey also noted that the jury pool was comprised of “more jurors than I (have) ever requested to appear.”
After a roughly 30-minute break, the court clerk drew 34 names to make the initial jury pool. An additional pool of about 40 people also entered the courtroom to replace any potential jurors dismissed for cause.
After Forgey excused a handful of jurors due to age and medical issues as allowed by state law, Blonigen questioned the jury pool.
Assembling a jury
Although one woman told Blonigen she had relatives in prison for sexual assaults she believes they did not commit, he did not ask her to be excused from the pool.
The prosecutor likewise did not ask for the excusal of a woman who said she had met Cercy briefly, or a man who said he knew the alleged victim in the case.
After Blonigen finished questioning jurors, Mackey took to the lectern.
The defense attorney asked potential jurors if they could presume Cercy innocent in the case. None of the assembled panel said otherwise.
“I will look at the facts and judge by the facts,” one potential juror said.
Soon after, a man was excused when he said his 13-year-old daughter would expect him to return a guilty verdict. He was replaced by another potential juror from a back-up pool.
Mackey turned her attention to the man who said he knew the alleged victim in the case. He told her he might have difficulty being impartial when it came to the woman’s testimony, but said he should be able to set aside any bias he might have.
“This is a job,” he said.
The man was not ultimately chosen for the jury.
Mackey then asked potential jurors if Cercy’s net worth or out-of-town lawyers would prejudice them against her client. None of the 34 took issue with either of the issues raised by Mackey.
When Mackey mentioned Cercy’s Fifth Amendment right to avoid self-incrimination, a handful of potential jurors expressed frustration with the idea of Cercy not taking the stand.
“I’d like to hear his side,” one man said.
By 4:10 p.m., a jury of 12, plus two alternates, was sworn in and preliminary instructions were read to jurors. The jury, including alternates, is made up of seven men and seven women.
The trial will continue 9:30 Tuesday morning. It is scheduled to run through Feb. 20.