Cedar Park coun­cil to look into po­lice probe of Kel­ley

Kel­ley’s trial lawyer: Unseal af­fi­davits to let her side of story be told.

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

Two key play­ers in the re­cent Greg Kel­ley court hear­ings are deal­ing with fall­out from the case.

Kel­ley’s trial lawyer is push­ing back against claims that she rep­re­sented him poorly dur­ing his first trial, ask­ing a judge in Wil­liamson County to let her tell her story in pub­lic by un­seal­ing af­fi­davits that de­tail why she de­fended him the way she did.

And the Cedar Park Po­lice De­part­ment is now un­der the

scru­tiny of the Cedar Park City Coun­cil. The de­part­ment — which has been blasted for years over how it in­ves­ti­gated the sex abuse crime of which Kel­ley was con­victed — is slated to be dis­cussed be­hind closed doors at a coun­cil meeting Thurs­day night.

“The peo­ple of Cedar Park are not go­ing to al­low th­ese peo­ple to con­duct in­ves­ti­ga­tions in our com­mu­nity,” said Kel­ley sup­porter Jake Bry­don, who says he plans to at­tend the meeting. “We are just not go­ing to al­low it.”

The fall­out comes in the wake of a three-day hear­ing last week in Wil­liamson County state Dis­trict Court, where Kel­ley’s lawyers made the case that their client — who is serv­ing 25 years in prison for su­per ag­gra­vated sex­ual as­sault of a child — is in­no­cent and, at the very least, de­serves a new trial. That de­ci­sion will ul­ti­mately be made by the Texas Court of Crim­i­nal Ap­peals.

Dur­ing Kel­ley’s trial, ap­peals lawyer Keith Hamp­ton says, the Po­lice De­part­ment and Kel­ley trial at­tor­ney Pa­tri­cia Cum­mings made mis­takes that landed an in­no­cent man in jail.

The in­ves­ti­ga­tion be­gan in 2013, when two 4-year-old boys said they had been sex­u­ally abused at an in-home day care fa­cil­ity run by Shama McCarty. Kel­ley, who was good friends with her son, Johnathan, was liv­ing in the home be­cause his own par­ents were ail­ing.

The boys named “Greg” as their abuser. One boy later re­canted, but a jury found Kel­ley guilty in 2014 of abus­ing the other boy.

In May, Wil­liamson County Dis­trict At­tor­ney Shawn Dick an­nounced the case had been re­opened and that Johnathan McCarty is now a sus­pect in the crime.

Cum­mings played a large role in Kel­ley’s wrong­ful con­vic­tion, Hamp­ton claims. The ap­peals lawyer says that Cum­mings picked the wrong de­fense strat­egy, stat­ing that she should have cast sus­pi­cion on McCarty in­stead of as­sert­ing that the crime didn’t hap­pen. Hamp­ton says that Cum­mings had a clear con­flict of in­ter­est be­cause she once rep­re­sented mem­bers of the McCarty fam­ily in court.

Dur­ing the three-day hear­ing last week, Cum­mings pre­sented two af­fi­davits ex­plain­ing in de­tail why she made the de­ci­sions she did. But the judge sealed those doc­u­ments, pre­vent­ing them from be­com­ing pub­lic.

Now Cum­mings wants those doc­u­ments un­sealed. She blames Hamp­ton’s le­gal ma­neu­vers for her in­abil­ity to ex­plain her­self in court.

“This is a case with sig­nif­i­cant pub­lic in­ter­est,” she wrote in a mo­tion to the court. “The pub­lic and press have heard the in­ef­fec­tive as­sis­tance al­le­ga­tions, as well as the new ev­i­dence that was not avail­able to Cum­mings at the time of her trial rep­re­sen­ta­tion. How­ever, through clever ma­nip­u­la­tion of the court, (Hamp­ton), with the ap­par­ent com­plic­ity of the Dis­trict At­tor­ney’s Of­fice, has kept Cum­mings’ re­sponse from be­ing avail­able to the pub­lic.”

Hamp­ton de­clined to com­ment.

While the doc­u­ments re­main sealed, Cum­mings’ mo­tion of­fers a glimpse into her story. She says she never rep­re­sented Johnathan McCarty in any court deal­ings. While she did rep­re­sent his half-broth­ers, that all ended in 2007. Af­ter that, there was no on­go­ing re­la­tion­ship be­tween Cum­mings and the McCarty fam­ily, she wrote. She be­lieves there was no con­flict of in­ter­est.

Cum­mings also wants to ad­dress Hamp­ton’s claim that she pre­sented the wrong de­fense at trial.

At the time of the trial, she writes, the de­fense had two choices: say the chil­dren couldn’t be be­lieved be­cause they “told un­be­liev­able sto­ries, full of fan­tas­ti­cal al­le­ga­tions and fa­tal in­con­sis­ten­cies”; or say the chil­dren’s al­le­ga­tions were true, but they were con­fused about who harmed them.

Cum­mings went with the first de­fense and wants to ex­plain why. But to do so, the judge needs to unseal the af­fi­davits.

Mean­while, Cedar Park Po­lice Chief Sean Man­nix and Sgt. Chris Dai­ley are be­ing tar­geted by Kel­ley sup­port­ers. Bry­don said he and about 50 other peo­ple sent Cedar Park City Coun­cil mem­bers emails this past week­end urg­ing them to fire Man­nix and Dai­ley, the lead in­ves­ti­ga­tor in the case.

A Texas Ranger called in to in­ves­ti­gate the case tes­ti­fied last week that the Cedar Park in­ves­ti­ga­tion missed nu­mer­ous steps and ig­nored key facts.

Dur­ing the hear­ing, Dai­ley said his in­ves­ti­ga­tion es­sen­tially con­sisted of talk­ing to Shama McCarty and hav­ing the chil­dren in­ter­viewed at the Wil­liamson County Chil­dren’s Ad­vo­cacy Cen­ter. He didn’t visit the day care, take pho­to­graphs, ques­tion other peo­ple who had ac­cess to the boys, col­lect ev­i­dence, ask the names of other chil­dren who at­tended the day care, con­sider other sus­pects or em­ploy other in­ves­tiga­tive tech­niques of­ten used in such cases.

Dai­ley also said in court that he pres­sured one lit­tle boy to re­peat his al­le­ga­tions against Kel­ley dur­ing his in­ter­view with the ad­vo­cacy cen­ter, even though the boy had re­canted.

Dai­ley said that, in ret­ro­spect, he wouldn’t have done anything dif­fer­ently. Man­nix has stood by Dai­ley, prais­ing the de­tec­tive’s work.

For those rea­sons, Kel­ley sup­port­ers are de­ter­mined to see Man­nix and Dai­ley fired. The coun­cil is sched­uled Thurs­day to discuss le­gal is­sues per­tain­ing to the case in ex­ec­u­tive ses­sion, as well as the de­part­ment’s train­ing, poli­cies and pro­ce­dures.

Cedar Park Coun­cil Mem­ber Corbin Van Ars­dale said he has heard from 16 to 18 peo­ple in the last week about the Kel­ley case: “Be­fore that, I hadn’t been con­tacted by any­one in prob­a­bly three years about it, which is when I first got on the coun­cil.”

Man­nix de­clined to com­ment, say­ing he didn’t think it would be ap­pro­pri­ate given the on­go­ing le­gal process.

Greg Kel­ley, at the very least, de­serves a new trial, his lawyers ar­gued last week.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.