Priest Trial Winds down

By Conor Berry
Berkshire Eagle
February 8, 2011

PITTSFIELD -- Testimony from a New York prosecutor and a DNA expert were among Monday's highlights in the trial of a former priest accused of raping two altar boys in Berkshire County more than 20 years ago.

Gary Mercure, who was permanently removed from ministry by the Roman Catholic Diocese of Albany in 2008, denies sexually assaulting the altar boys as a diocesan priest in Queensbury, N.Y., in the 1980s. Prosecutors maintain that Mercure raped the boys, both from New York and now in their 30s, during separate incidents in 1986 and 1989 in the Great Barrington area and New Ashford.

Warren County District Attorney Kathleen B. Hogan took the stand in Berkshire Superior Court Monday to explain her role in contacting Massachusetts and Vermont authorities about alleged assaults in those states. Mercure couldn't be prosecuted for alleged New York crimes because the statute of limitations for bringing charges in that state had elapsed, according to Hogan, who then contacted officials in the neighboring jurisdictions.

Hogan said she learned about one alleged abuse incident after being contacted in January 2008 by an attorney for the Albany Diocese. Hogan said she learned about the 1986 case through phone conversations with the alleged victim. By February of that year, Hogan said she came in contact with the alleged victim of the 1989 incident, whom she interviewed in person.

Under questioning from defense attorney Michael O.

Jennings, Hogan said it was her duty as district attorney to report the allegations to Massachusetts, regardless of the lack of a viable criminal case in her own jurisdiction.

"I was only a conduit for that information," Hogan said.

Of the five altar boys from Mercure's former Queensbury church that came in contact with the district attorney, only two claimed they were sexually abused by Mercure in the Berkshires. All five, however, claimed they were repeatedly assaulted by Mercure in New York, according to testimony.

Jennings continues to focus on a 2008 New York press conference by a support group for clergy sex-abuse victims.

He had previously asked the former altar boys -- all of whom have taken the stand against Mercure -- whether they were aware of publicity sparked by the case, which garnered heavy press attention in New York at the time. On Monday, the attorney took the same line with Hogan, quizzing the prosecutor on her knowledge of the press conference. Hogan said she learned about the press conference after reading about it in a local New York newspaper.

Jennings has suggested throughout the trial that the media exposure, beginning with that press conference, has significantly reduced the ability for his client to get a fair trial, creating an atmosphere in which Mercure has already been publicly "branded a rapist."

The attorney also has suggested that the motivation for the alleged victims coming forward years later was financial, considering no criminal action could be taken against Mercure in New York. To that end, Jennings questioned a former girlfriend of the alleged 1986 Berkshire victim, who testified Monday as a witness for the defense.

The woman claimed her former boyfriend had "talked about money" from a potential lawsuit settlement -- no suit was ever filed -- and cited ballpark figures ranging from $6 million to $16 million.

Under questioning from Berkshire First Assistant District Attorney Paul J. Caccaviello, the woman testified that her boyfriend told her he was raped by Mercure, and that she "paid for him to go get professional help" from a therapist. She said her boyfriend appeared to be disturbed by the alleged abuse.

The woman also testified that she, her boyfriend and Mercure were lounging poolside many years ago, when her boyfriend -- an athlete in good physical condition -- began to flex and pose, ostensibly for laughs. Mercure wanted to be photographed with the woman's boyfriend, but he didn't want her to be included in the photos.

"He told you to get out of the picture," Caccaviello said.

Jay Caponara, a forensic analyst for the New York State Police, was responsible for examining several pairs of underwear from the alleged 1989 victim, who as a child would hide the garments inside a wall at his Queensbury home after allegedly being assaulted by Mercure.

Caponara testified that none of the underpants contained DNA from Mercure, though a "partial DNA profile" from the alleged victim's father was detected on one sample, which did not come from semen. Caponara speculated that it could have come from skin cells or saliva.

The DNA expert, after questioning from Assistant District Attorney Marianne Shelvey, admitted that the integrity of the samples could have been compromised by humidity or other environmental factors, including the long-term storage of the underwear inside a plastic bag.

During earlier testimony in the trial, Jennings revealed that investigators never pursued any other possible culprit in connection with the alleged 1989 abuse case, but instead focused solely on Mercure.

Although Mercure is no longer permitted to wear a priest's collar or celebrate the Catholic ritual of Mass, the 62-year-old Troy, N.Y., resident has not been defrocked -- or permanently expelled from the priesthood. Only the Vatican has authority to defrock a priest.

Berkshire Superior Court Judge John A. Agostini said the trial is scheduled to conclude with closing arguments Wednesday, at which point the case will be handed over to the jury for deliberations.

Any original material on these pages is copyright 2004. Reproduce freely with attribution.