Rape Trial of Ex-priest Now before Jury

By Bob Gardinier
Albany Times Union
February 9, 2011

In Wednesday's closing arguments in the rape trial of Gary Mercure, a prosecutor portrayed the former priest as winning the trust of his victims' families and threatening the boys to keep them quiet.

But Mercure's lawyer countered that the alleged victims made up their accounts of sexual attacks in Massachusetts to take advantage of a longer statute of limitations than New York allows.

Mercure, who at one time was stationed in Troy, is accused attacking the boys during incidents in the Berkshires in the 1980s.

Most of Wednesday was taken up in closing arguments. Berkshire County Superior Court Judge John A. Agostini instructed jurors about the law, after which they met briefly before leaving for the day.

Deliberations resume Thursday morning.

First Assistant District Attorney Paul Caccaviello told jurors that Mercure, 62, used a variety of threats to keep the boys from telling their families or authorities. "To a young boy, his threats were like a knife to their throats," said Caccaviello. The prosecutor also noted Mercure made the boys pray while he abused them.

"He even used the power of prayer to get his victims to relax," Caccaviello said.

But Mercure's lawyer, Michael O. Jennings, suggested the two alleged victims conspired with advocates for victims of sex abuse by priests to make up their assertion that Mercure attacked them in Massachusetts as well as New York.

"There certainly is a powerful motive here to fabricate stories in Massachusetts. All they had to do was take one incidence of them being raped in the backseat of a car someplace else and just move it to Massachusetts," Jennings said.

Mercure's two alleged victims testified they were abused in separate incidents in the parking lot at Brodie Mountain and in the parking lot of an Appalachian trailhead, both in Berkshire County.

The location of the alleged crimes are important because the statute of limitations has not expired in Massachusetts while it has expired in New York.

Mercure is charged with three counts of rape of a child with force, a lesser charge of rape of a child without force, and one count of indecent assault and battery on a child under the age of 14.

Earlier in the day, Seth Rogovoy, a juror dismissed from the panel after mentioning his jury duty on Twitter, said his use of the social media platform was innocuous and made no specific reference to the case.

"I never mentioned any of the people (involved): the defendant, the witnesses. I never mentioned the court I was sitting it," said Rogovoy, the editor of Berkshire Living.

Agostini questioned Rogovoy about a Tweet posted Tuesday night: "I am in contempt of court, de facto if not de jure."

Rogovoy thought it was a clever pun but the judge thought it violated his rule not to discuss the case and dismissed the juror.

Sixteen potential jurors were chosen for the panel so even without Rogovoy, there are enough jurors to handle deliberations.

Rogovoy used Twitter at other points during the trial. On Friday, he wrote: "I packed a fork with which to eat my salad on break in the jury room. Big fail. Busted! No forks allowed." On Thursday, Feb. 3, he wrote: "Sucks that you can't tweet from the jury box. What's the fun in that?"

During an interview with the Times Union on Wednesday, Rogovoy said he expected the exploding popularity of social media like Facebook and Twitter -- Twitter has been seen as a key tool for organizing the protests in Egypt -- will force judges to confront their use in the courtroom.

Rogovoy said, "I enjoyed serving on the jury" and until Agostini's decision "thought the judge did an amazing job."


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