Casper Businessman Wants Certain Evidence Motions, Hearings Sealed
Attorneys for Casper businessman Tony Cercy, charged with one count of third-degree sexual assault, want Natrona County District Court to block the public and the media from learning about certain evidence that may not be admissible at trial.
Besides wanting these court filings sealed, Cercy's attorneys want any hearing about them off limits to the media, attorneys Ian Sandefer and Pamela Mackey wrote.
This motion was filed on Aug. 24 among other documents in anticipation of the trial on one count of third-degree sexual assault -- sexual contact without penetration -- in Thermopolis beginning Nov. 9.
District Attorney Mike Blonigen said Thursday he will file a response by Sept. 17.
In February, a jury acquitted Cercy of one count of first-degree sexual assault (rape) and one count of second-degree sexual assault of a 20-year-old woman at his house at Alcova lake on June 25, 2017.
District Court Judge Daniel Forgey declared a mistrial after the jury could not reach a verdict on the third-degree sexual assault.
The family of the woman asked, and Blonigen agreed, to file that charge again.
In June, Forgey granted Cercy's request for a change of venue to hold the trial in Thermopolis, the county seat of Hot Springs County. Cercy's attorneys argued he could not get a fair trial in Natrona County because of the the pervasive media coverage from his arrest in July 2017 leading to the trial in February, during the trial and afterwards.
Besides changing the venue, Cercy's attorneys want Forgey to order the prosecution's filings sealed of what the Wyoming Rules of Evidence call Rule 404(b). That rule permits evidence of "other crimes, wrongs, or acts" to be admitted at trial for purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," so long as the prosecution "provide[s] reasonable notice" ahead of trial.
The court then rules whether that evidence will be admissible at trial. If the evidence is not sealed and found not admissible, the information is still in the public realm and that could unfairly influence potential jurors.
Again, the media remain the problem, the attorneys wrote.
For example, in January the prosecution proffered 404(b) evidence during a morning hearing. During the lunch break, and before the defense could respond and before the judge could make a ruling whether it was admissible, multiple media sources reported that information, Cercy's attorneys wrote.
That affected the jury pool, they wrote.
"Juror questionnaires submitted in advance for the first trial showed that the media coverage of the inadmissible other acts evidence influenced the venire," they wrote, adding courts have ruled the public and the media do not have an absolute right to attend pretrial hearings.
That problem in Natrona County also will be a problem, perhaps even more so, in Hot Springs County, which has an estimated population of about 4,800 with one fifth of that is under 18.
"Given the small size of the jury pool, the potential for contamination is significant," Cercy's attorneys wrote.
"If inadmissible other acts evidence is allowed to enter the public domain, that proverbial bell cannot be unrung," Sandefer and Mackey wrote. "Mr. Cercy's right to a fair trial by an impartial jury will again be compromised."
Blonigen has said as of late August he doesn't intend to file anything new 404(b), but if he does the court should order that information be filed under seal, they wrote.