Avery denies the accusation, as well as a charge that he knowingly possessed child pornography.

During jury selection on Tuesday in Alpena’s 26th Circuit Court, Alpena County Prosecutor Cynthia Muszynski cautioned jurors that they would have to view photos of child sexual abusive material police say they found on at least one of Avery’s electronic devices among adult pornography images.

Police allegedly found videos of the girls changing clothes on a computer used by Avery during his tenure as a member of the County Fair Board.

Police seized that computer as part of an investigation that led to Avery’s admission in 2019 that he embezzled money the previous year, while serving as Fair Board treasurer.

News Photo by Julie Riddle Judge George Mertz, on bench, and Suzette Hawley, recording on behalf of the Alpena County Clerk’s Office, listens as Alpena County Prosecutor Cynthia Muszynski, left, and defense attorney Dan White debate a matter in Alpena’s 26th Circuit Court on Tuesday.

Avery was sentenced to six months in jail in that case.

Muszynski is allowed to introduce that prior conviction during this week’s trial on the current charges, ruled Judge George Mertz, of the 46th Circuit Court in Crawford, Kalkaska, and Otsego counties.

Mertz will preside over the trial to avoid a potential conflict of interest on the part of Alpena County Judge Ed Black.

During four hours of jury selection, about 50 Alpena County residents — the same jury pool that showed up last week at the outset of another trial — answered questions from Muszynski and lead defense attorney Dan White asked about potential jurors’ understanding of computers, their prior knowledge of Avery’s previous conviction, and their inclination to jump to the defense of children.

After both sides agreed on a jury, defense co-counsel Matt Wojda asked Mertz to swear in jurors immediately – a move Wojda later admitted was strategic, to prevent Muszynski from changing an incorrect number in a court document.

That inaccuracy kept the defense from fully understanding the fourth charge against Avery — that of using a computer to commit a crime — and preparing a proper defense, Wojda alleged.

Avery’s attorneys had years to complain about the number and had obviously timed their maneuver solely to trip up the prosecution, Mertz said, with which Wojda agreed.

Mertz said the law allowed him to give Muszynski a chance to change the inaccurate number, even though the trial had technically started with the swearing in of the jury.

The trial resumes today. Muszynski expects to get through her witnesses by this afternoon, and White plans to call two witnesses on Thursday, with both parties hopeful the trial will wrap up by the end of Thursday.

Avery has been free on bond since his arrest in May 2020.

Julie Riddle can be reached at 989-358-5693 or jriddle@thealpenanews.com. Follow her on Twitter @jriddleX.