New suspect won’t give his cellphone pass code
Kelley’s former friend, tied to sex assault of boy, 4, ignoring order.
Johnathan McCarty, described as an alternative suspect in the sexual assault of a 4-year-old boy, has stalled investigators by refusing to comply with a court order to provide his cellphone pass code, the American-Statesman and KVUE-TV have learned.
McCarty’s former friend, Greg Kelley, is serving a 25-year prison sentence for the crime, and McCarty so far has refused to provide the information, despite the order of a Williamson County judge, said Keith Hampton, who represents Kelley and who has provided information to the Texas Rangers for the McCarty investigation.
The judge has sealed the court order and a search warrant for McCarty’s mobile devices.
“I hope that they will get into his cellphone,” Hampton said Tuesday after a brief court setting for McCarty on unrelated drug charges. “They clearly have probable cause to believe that
his cellphone has evidence of criminality.”
The revelation is the latest development in a case that has garnered widespread attention after prosecutors announced in late May that McCarty might have been responsible for the assault that led to Kelley’s conviction. They have since reopened the investigation.
Kelley, who was convicted in 2014 after the boy identified Kelley as his attacker, has a hearing in August in which he is seeking to have his conviction overturned based on new evidence against McCarty. Last month, Kelley was returned to the Williamson County Jail from a state prison in Huntsville to help his lawyers prepare for the proceeding.
Williamson County District Attorney Shawn Dick, who is leading the investigation, and McCarty’s lawyer, Kellie Bailey of Austin, who was in Georgetown for the hearing, said Tuesday that they are unable to comment on issues concerning McCarty’s cellphone pass code because the court records are confidential.
The question of whether defendants can be compelled to provide cellphone pass codes has been argued in courts nationally in recent years. Some lawyers have equated the issue to being required to testify against one’s self-interest, violating the Fifth Amendment, but courts have generally said such orders are legal because pass codes aren’t considered evidence.
In one major national case, Florida courts ruled a man may be forced to surrender his pass code after he was charged with taking surreptitious photographs of a woman in a clothing store.
According to previously filed documents by Kelley’s defense, McCarty had photographs of nude children on his cellphone and computer that he thought he had deleted, but the court documents weren’t clear about how that information was obtained. Those records also say that McCarty has confessed to at least two people that he was responsible for the assault.
McCarty hasn’ t been charged with any crime relating to the sex assault case. However, he has an extensive arrest history on drug charges and remains in the Williamson County Jail with his bail set at $400,000 for a probation violation on assault charges.
On Tuesday, McCarty had a court setting for the probation violation, but he didn’t appear in court. That hearing was reset for Aug. 30.
Kelley’s supporters — including his mother, Rosa Kelley, who have been outspoken that they believe Kelley was wrongfully convicted — were at the courthouse for Tuesday’s proceeding. They declined to comment outside the courtroom, but held hands and formed a circle to pray.
Kelley, in an interview with the Statesman in May, maintained his innocence and said he is optimistic about a possible release before he serves the mandatory 25-year sentence.
“My hope has skyrocketed that I’m going to be out of here before I’m 44,” he said.