Tony Cercy’s Attorney: Third Trial Would Violate the Constitution

An attorney for former Casper businessman Tony Cercy, whose third-degree sexual assault conviction was overturned by the Wyoming Supreme Court last week, says another trial would invariably run afoul of the constitutional prohibition of trying a person twice for the same crime, known as double jeopardy.

Natrona County District Attorney Dan Itzen disputed that, without going into detail.

"Well, I guess they're entitled to their opinion, and that's the reason we have the court system," Itzen said Thursday.

Meanwhile, he said he still needs to meet with the alleged victim and her family about whether they want the district attorney's office to file the charge again.

Cercy, 57, was released on a $100,000 bond on Tuesday from a Newcastle prison camp where he was serving a six- to eight-year prison term for his 2018 conviction of third-degree sexual assault. He was accused of sexually assaulting a 20-year-old woman who passed out on a sofa at his Alcova lake house in June 2017.

Cercy was convicted after a second trial in November 2018. The first trial in February 2018 saw Cercy acquitted of first- and second-degree sexual assault, while District Judge Daniel Forgey declared a mistrial on the third-degree count.

The alleged victim and her family asked the district attorney to retry the case on the third-degree count alone, leading to the second trial.

During the November 2018 trial in Hot Springs County Court, prosecutors presented evidence of oral sexual assault, which included sexual intrusion.

But the high court found that kind of assault goes beyond Wyoming's statute for third-degree sexual assault.

The justices ruled it would be applicable to the first- and second-degree crimes of which Cercy was acquitted during his first trial in February 2018, but state law defines oral sex as penetration, which explicitly prohibits it from meeting the requirements for a conviction under the third-degree statute.

The court ruled Forgey abused his discretion when he did not adequately instruct the jury about those issues.

The court said that if prosecutors try Cercy again on the third-degree sex assault charge, they should provide other evidence of sexual contact.

In his email to Itzen, defense attorney Jeffrey Pagliuca wrote, "Simply stated, it seems unlikely that evidence of cunnilingus can be admitted in a new trial without violating state and federal jeopardy concerns. Forced cunnilingus was the alleged victim's only actual complaint against Mr. Cercy. The rest was simply a transparent attempt, post the first trial, to avoid suffering the consequences of a jeopardy bar."

Legal issues aside, Pagliuca wrote Cercy has been punished enough and should not have to endure the grief of a third trial.

"Mr. Cercy endured two very public trials, was vilified in the media, and, consequently, exiled from the Wyoming community. He has spent over one year in jail, time that he cannot recover. His health is poor and there is no principled reason to continue this prosecution at great fiscal and emotional expense to Natrona County," he wrote.