A Casper businessman posted six-figure bail Tuesday, days after the Wyoming Supreme Court’s reversal of his sexual assault conviction.
The check, issued to Natrona County District Court, cleared the way for Tony Cercy, 57, to be released from a Newcastle prison camp where he had been serving a six- to eight-year prison term on a third-degree sexual assault conviction.
That conviction was reversed on Friday by the state’s appellate court. In its written opinion, the Wyoming Supreme Court ruled that jurors who convicted Cercy were not properly instructed on law governing the crime.
Because the case remains open and is eligible for retrial, the reversal did not mean Cercy walked free. He remained held in prison while the state Supreme Court delivered its decision to Natrona County District Court, where Cercy was tried. Then, a judge had to set a bond requirement.
On Monday, Cercy’s lawyers filed an emergency request to Natrona County District Court Judge Daniel Forgey for a new requirement. In the filing, defense lawyers stated that prosecutors had not responded to their requests for a setting allowing for Cercy’s release.
The next day, Cercy’s defense team stated District Attorney Dan Itzen said he was unopposed to Cercy’s release on $100,000 bail, which matches the amount he posted before the now-reversed conviction. Forgey the same day set the requested bond condition and a representative for Cercy posted bail with the court’s clerk.
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If the case goes to trial again, it will be Cercy’s third time facing a jury on the same charge. In February 2018, a Natrona County jury found Cercy not guilty on counts of first- and second-degree sexual assault but did not come to a conclusion on a third charge. Prosecutors re-filed the case and, in November of the same year, a jury in Hot Springs County found Cercy guilty of the sole remaining count.
Forgey ordered Cercy to jail immediately after the conviction. And, in February, the judge then ordered he serve the prison time.
Whether Cercy will again go to trial is not clear: Itzen said by phone early Tuesday afternoon that he had not decided whether to charge Cercy again. He reiterated a Friday statement to the Star-Tribune that he would speak to Cercy’s accuser and her family before making a decision.
Defense attorneys, however, have characterized the prosecution’s case as nearly impossible.
In its Monday filing, the defense team wrote that the Supreme Court’s decision will make it far more difficult for prosecutors to convict Cercy. If Cercy is to be retried, a federal court will have to make a ruling on a still-unresolved defense claim to a Fifth Amendment violation, argued Cercy’s defense attorneys Jeff Pagliuca and Ian Sandefer.
“The decision precludes shortcuts circumventing the first jury’s acquittal and the law of Wyoming (not to mention the U.S. Constitution),” the filing states. “No longer will the prosecution be allowed to ‘recharacterize’ acquitted conduct as some nonexistent distinct offense.”