Tony Cercy Trial: Motion to Dismiss Case Denied
THERMOPOLIS — Natrona County District Court Judge Daniel Forgey denied a motion from Casper businessman Tony Cercy’s defense team to dismiss the case during the sixth day of the sexual assault trial at the Hot Springs County Court House on Monday morning.
After the prosecution rested its case, Jeffrey Pagliuca told the court without the jury present that the evidence presented by the prosecution is not enough to warrant the case moving forward, in part, because Natrona County District Attorney Mike Blonigen has tried to expand the definition of oral sex.
Pagliuca said that when a jury in February acquitted Cercy of first-degree (rape) and second-degree sexual assault, it also at that time rejected the allegation of oral sex. The court, he added, should ask the jury to dismiss all testimony about oral sex.
Cercy was charged with those crimes when a then, 20-year-old woman said she passed out at Cercry’s house at Alcova Lake on June 24, 2017, and woke up about 3 a.m. to 3:15 a.m. with most of her clothing removed, and Cercy between her legs.
Pagliuca also said there was no discussion by the alleged victim of how her clothing was removed.
Blonigen responded the prosecution had at there was only one person who could have removed the alleged victim’s clothing, she was specific about what happened in the alleged assault, and the case should be sent to the jury.
Forgey denied Pagliuca’s motion and the trial resumed.
The prosecution’s last witness was Dr. John Simon Buckleton, a forensic scientist from New Zealand with a doctorate in chemistry and a degree uncommon outside New Zealand and Australia that is far more advanced than a doctorate. He also was an assistant in the murder trial of O.J. Simpson, he said.
His testimony bolstered that of Jennifer Brammeier, Senior Forensic Scientist with the State Crime Lab, who testified Friday about the DNA analysis of a swatch from a cushion cover of the couch where the alleged victim said the assault occurred.
He was a creator of STRmix, a software program created to analyze multiple samples of DNA — deoxyribonucleic acid — the unique building block of all organisms.
Buckleton said the relatively new STRmix is widely respected It is used by 38 laboratories in the United States — including those for the FBI and U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives — and 20 other labs worldwide. The mathematics behind the STRmix are also used in work in physics, earthquakes, and dinosaurs.
The program has changed the idea of analyzing DNA, he said.
Unlike crime television shows and movies, forensic scientists have veered away from talking about if a DNA sample found at a crime scene is a “match” with someone’s known DNA.
Instead, the new methods of DNA analysis including STRmix use the term “likelihood ratio,” Buckleton said. Brammeier used that term Friday.
In other words, it’s not a match if a DNA sample or samples are a “match,” but rather the likelihood that the possibly of a sample or samples randomly happening is one in a number.
Brammeier said the likelihood that the alleged victim’s and the DNA from Tony Cercy found on the cushion cover was random was one in 52.6 sextillion — 52,600,000,000,000,000,000,000 — compared to the alleged victim with DNA from two unknown persons, Brammeier said.
Under cross examination from defense attorney Pamela Mackey, Buckleton said the STRmix program can only determine that the DNA is present, not when or how it was deposited.
Buckleton also said STRmix does not look at how DNA may be transferred from one surface to another.
After Buckleton’s testimony and Forgey’s denial to dismiss the case, the defense called witnesses Monday morning including Dr. William O’Donohue who testified about sexual assault victims, trauma and memory; Cercy’s friends Thaddeus and Mickey White, and Kera Bullard; and consultant Mary Cablk, who testified about the experiment to determine whether dogs sleeping in a bedroom in the house would have barked during the alleged sexual assault.
Testimony continues Monday afternoon, and K2 Radio will update this story.