DA: Jus­tice sys­tem broke down in Greg Kel­ley case

Dick says that he ‘would not have tried this case’; Kel­ley’s fam­ily ju­bi­lant.

Austin American-Statesman - - FRONT PAGE - By Tony Plo­het­ski, An­drea Ball and Claire Os­born tplo­het­ski@states­man.com aball@states­man.com cos­born@states­man.com

In a pow­er­ful speech to the court Fri­day, Wil­liamson County Dis­trict At­tor­ney Shawn Dick de­liv­ered a sweep­ing con­dem­na­tion of the case that led to Greg Kel­ley’s con­vic­tion on child sex­ual as­sault charges, say­ing he thinks the bulk of the crim­i­nal jus­tice sys­tem — from po­lice, pros­e­cu­tors and Kel­ley’s de­fense lawyer to a ju­ror — failed.

The com­ments came on the third and fi­nal day of a hear­ing that re­vealed what of­fi­cials — in­clud­ing a Texas Ranger — de­scribed as fright­en­ing de­fi­cien­cies in the case. Dick had said at the be­gin­ning that he was keep­ing an open mind and viewed the pro­ceed­ing in which Kel­ley is seek­ing his free­dom as a fact-find­ing mis­sion.

By Fri­day, his tone bor­dered on dis­be­lief.

“My com­mit­ment is to re­store the pub­lic’s faith and trust in our crim­i­nal jus­tice sys­tem,” said Dick, who took of­fice in Jan­uary and pri­or­i­tized the Kel­ley case. “I can’t do that by de­fend­ing a prose­cu­tion like Mr. Kel­ley’s.”

In his pre­pared re­marks, which spanned about five min­utes, Dick apol­o­gized to the fam­ily of the 4-year-old sex­ual abuse vic­tim whose out­cry sent Kel­ley to prison for 25 years.

“It’s im­por­tant to know this whole mess is not your fault,” he said. “We want to make sure we fix this sys­tem so an­other fam­ily does not have to go through the same thing.”

Dick then sin­gled out oth­ers, in­clud­ing the Cedar Park po­lice in­ves­ti­ga­tion, which he called “wholly de­fi­cient,” and he said the pros­e­cu­tors in the case erred by go­ing for­ward with scant ev­i­dence and by ex­er­cis­ing “tun­nel vi­sion and push­ing this case to trial.”

“I would not have tried this case,” Dick later told re­porters.

Kel­ley’s orig­i­nal trial lawyer, Pa­tri­cia Cummings, who briefly tes­ti­fied Thurs­day, also had all the in­for­ma­tion she needed to bet­ter de­fend her client, in­clud­ing

the pos­si­bil­ity that some­one other than Kel­ley had com­mit­ted the crime, Dick said.

Dick also blamed a ju­ror who said he didn’t think Kel­ley was guilty but voted to con­vict un­der pres­sure from oth­ers on the jury.

“We can, and we must, do bet­ter,” the DA con­cluded.

Dick re­opened the case this spring af­ter new in­for­ma­tion re­vealed some­one else might have com­mit­ted the crime. Pros­e­cu­tors have pre­vi­ously iden­ti­fied as a sus­pect Johnathan Mc­Carty, whose mother op­er­ated an in-home day care fa­cil­ity where the abuse hap­pened, and a Texas Ranger tes­ti­fied that an ad­di­tional sus­pect also ex­ists. The Ranger said he couldn’t rule out Kel­ley.

State Dis­trict Judge Donna King will de­cide in com­ing weeks whether to rec­om­mend Kel­ley’s con­vic­tion be over­turned. The state’s high­est crim­i­nal court, the Texas Court of Crim­i­nal Ap­peals, will have the fi­nal say in a process that could take months.

King promised to work quickly, but said she wants to be thor­ough. She gave lawyers an Aug. 18 dead­line to present their pro­posed fac­tual find­ings, which both sides must agree upon for her to free Kel­ley on bail.

“I know there is a lot of anx­i­ety and sense of ur­gency, and I want ev­ery­one to un­der­stand that you’re not alone in those feel­ings,” King said. “The court is anx­ious and has a sense of ur­gency to reach some fi­nal­ity in this mat­ter for Mr. Kel­ley that has gone on for far too long.”

On Fri­day, af­ter days of tes­ti­mony and be­fore Dick’s ad­dress, one of Kel­ley’s lawyers, Keith Hamp­ton, made his fi­nal pitch to the judge. Us­ing a Pow­erPoint pre­sen­ta­tion, the ap­peals lawyer went through the var­i­ous rea­sons he be­lieves Kel­ley should be granted re­lief.

He re­peated that Cedar Park po­lice in­ves­ti­ga­tor Chris Dai­ley didn’t talk to other peo­ple who lived in the home where the abuse hap­pened, didn’t con­sider other sus­pects, didn’t visit the scene, didn’t take pho­to­graphs and didn’t use other law en­force­ment tech­niques of­ten em­ployed in in­ves­ti­ga­tions.

Kel­ley also de­serves re­lief, he said, be­cause an al­ter­na­tive sus­pect has been iden­ti­fied. Mc­Carty lived in the home where the chil­dren at­tended day care, Hamp­ton said. The vic­tims both said the abuse oc­curred in a room with a crib, which was ac­tu­ally in Johnathan’s room, he said.

Mc­Carty had pic­tures of naked chil­dren on his cell­phone and desk­top com­puter, Hamp­ton said. When a Texas Ranger con­duct­ing a re­view of the case asked Mc­Carty if he had such pic­tures on his desk­top com­puter, Mc­Carty an­swered, “Those have all been deleted,” Hamp­ton said. He also said he be­lieves the two vic­tims were con­fused be­tween Mc­Carty and Kel­ley be­cause the two shared sim­i­lar fa­cial fea­tures.

Mean­while, Cummings failed Kel­ley dur­ing his trial, Hamp­ton said. The lawyer, who had rep­re­sented the Mc­Carty fam­ily on crim­i­nal mat­ters, re­fused to con­sider Mc­Carty as a po­ten­tial sus­pect.

Th­ese and other is­sues con­trib­uted to the wrong­ful con­vic­tion of Kel­ley, Hamp­ton said. “I think the sys­tem suf­fered a cat­a­strophic fail­ure,” he said.

Out­side the court­house, Kel­ley’s friends and fam­ily were ju­bi­lant and feel Kel­ley is on a path to vin­di­ca­tion and free­dom.

“We’ve wait­ing for so long to hear what we hear to­day, and I know it’s go­ing to hap­pen (Kel­ley’s re­lease),” said Rosa Kel­ley, his mother. “It’s just a mat­ter of a lit­tle more days.”

RI­CARDO B. BRAZZIELL / AMER­I­CAN-STATES­MAN

Rosa Kel­ley, Greg Kel­ley’s mother, speaks with Texas Ranger Cody Mitchell in the hall­way of the Wil­liamson County Jus­tice Cen­ter on the fi­nal day of the hear­ing Fri­day.

RI­CARDO B. BRAZZIELL / AMER­I­CAN-STATES­MAN

Greg Kel­ley walks into court Fri­day. One of his lawyers, Keith Hamp­ton, out­lined rea­sons Kel­ley should be granted re­lief. “I think the sys­tem suf­fered a cat­a­strophic fail­ure,” Hamp­ton said.

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