In Greg Kelley case, prosecutors wielded harsh weapon with new charge


Highlights

Super aggravated sexual assault carries minimum 25 years prison term with no possibility of parole.

Initial push by then-Lt. Gov. David Dewhurst had sought a mandatory 25-year sentence on all child sex crimes.

When prosecutors began building a case against Greg Kelley on child sexual assault charges, they relied upon what many experts say was shaky evidence that hinged on the word of two young boys, one of whom recanted during the trial.

Despite that, the Williamson County district attorney charged him with the most aggressive, punitive crime possible — “super aggravated sexual assault” — a relatively new charge intended to reflect Texas’ tough-on-crime posture and adopted in a national wave of new efforts to hammer child predators.

Authorities can use the charge against defendants alleged to have sexually abused a child under the age of 6, or who have sexually abused a child under 14 and assaulted him or her in some other way, such as using a weapon. If convicted, defendants receive a minimum of 25 years in prison without any possibility of parole before that time is up.

Because it strips them of case-specific discretion and can be more punitive than necessary, other prosecutors, including the new Williamson County district attorney, have at times been reluctant to use it even when technically they could.

Just prior to Kelley’s trial, Williamson County prosecutors offered him a plea agreement that would have included no prison time. Insisting that he was innocent, Kelley took what defense attorneys say is an extraordinary risk, given the high stakes, opting to take his case to a jury, which convicted him on the most serious charge.

Now that conviction is in question. In the past month, Williamson County District Attorney Shawn Dick has said the Texas Rangers are investigating whether Kelley’s best friend, Johnathan McCarty, might have been responsible for the crime. Kelley was staying with McCarty — whose mother operated an in-home child care center where the abuse is thought to have occurred — because Kelley’s parents were ill.

A hearing is set for early August in which Kelley is seeking to have his conviction overturned. He was recently moved from a state prison to the Williamson County Jail to help prepare.

The case highlights the infrequent use of the severe charge that led to Kelley’s conviction and mandatory prison sentence of 25 years. Facing the possibility of life in prison, Kelley struck an agreement with prosecutors after he was found guilty to accept the sentence.

“When the statute was passed, I think some prosecutors believed this would be a useful, aggressive tool,” said Allison Benesch, a former Travis County prosecutor who worked on child abuse cases for more than two decades and now teaches on the subject at the University of Texas law school. “In reality, proving a case with a victim that has to be younger than 6 years old is exceedingly difficult. I don’t think the statute has played out to be one that advances the ball as much as originally thought.”

“Way over the top”

Now 22, Kelley joined a minuscule club when he was convicted in 2014 of the crime. An American-Statesman review has found that, even with the charge at their disposal, district attorneys across Texas rarely pursue it in court.

In 2014, the year Kelly was convicted of the crime, there were 1,600 victims of sexual assault in Texas under the age of 5, according to the Texas Department of Public Safety. But only 12 people were convicted of super aggravated sexual assault that year.

According to numbers from the Texas Department of Criminal Justice, only 87 people have been sentenced on the charge since it became Texas law in 2007 — an average of fewer than nine every year.

Texas prosecutors had an ambivalent take on the tougher statute from the start. After 9-year-old Jessica Lunsford was raped and murdered by a convicted sex offender in Florida, a number of states, propelled by popular sentiment (commentator Bill O’Reilly was a loud proponent), began passing a series of new statutes collectively referred to as Jessica’s Law. Although the details varied from place to place, all proposed severe and mandatory punishments for first-time sex offenders whose victims were children.

The Texas version was promoted most visibly by then-Lt. Gov. David Dewhurst. Leading up to the 2007 legislative session, he adopted Jessica’s Law as a cause, printing bumper stickers promising “25 years to life,” recalled Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association. Dewhurst didn’t respond to an interview request.

While Texas has a famously tough-on-crime reputation, local prosecutors were unenthusiastic about the proposed law, which called for a mandatory 25-year sentence on all child sex crimes. With the state’s existing aggravated sexual assault statute already allowing for up to a life prison sentence, many saw the proposal as more political than practical.

“It would have been a train wreck if we’d passed it,” Edmonds said. “It was way over the top — top-down legislation, where a lieutenant governor said he was going to do this.”

As the session progressed, several prosecutors, including then-Williamson County District Attorney John Bradley, testified against it. (Bradley didn’t respond to an interview request.) One problem prosecutors foresaw was a lack of flexibility on less-horrific sex crimes such as so-called Romeo-Juliet relationships, in which an 18-year-old could be charged with a crime for having sex with his 14-year-old girlfriend. They also worried that making every crime punishable by 25 years would clog the courts by effectively eliminating plea bargains.

Victim’s advocates, meanwhile, worried that family members might be reluctant to turn in a friend or relative — statistically the most likely abuser — knowing that he or she faced at least a quarter-century behind bars without hope of early release.

“But I can’t vote against it”

Despite such concerns, many lawmakers felt trapped, worried that a vote against the proposal would come back to haunt them in the form of soft-on-crime attacks during their next campaign.

“I had conservative members come to me and say, ‘I’m not sure this is good, but I can’t vote against it,’” recalled then-Rep. Dan Gattis, who, because of his experience as a former Williamson County prosecutor, was tapped to work behind the scenes to craft a compromise.

“We knew we had to have the number 25 in there someplace going in,” Edmonds recalled. So instead of making every child sex crime punishable by a minimum of 25 years, lawmakers came up with a limited version: the super aggravated sexual assault charge and a new crime called continuous sexual assault of a child, defined as two or more acts of sexual abuse against a child under age 14 over at least a month.

Both carried the 25-year minimum sentence. Offenders twice convicted of the super aggravated charge were also eligible for the death penalty, although that provision was struck down by the U.S. Supreme Court a year later.

While only a tiny number of people have been convicted of the super aggravated offense since then, defense attorneys say it casts a disproportionately long shadow across courtrooms by steeply raising the stakes in plea negotiations.

“The exposure is so high now,” said John Floyd, a Houston attorney who said he has defended a half-dozen defendants charged with super aggravated sexual assault in recent years. “You tell your client the prosecution is offering 10 years, and you’re looking at 25 years minimum, even people who are innocent would consider it.”

He added: “Having this arrow in their quiver to force a plea creates an injustice, because clients are scared to death of this 25-year-to-life punishment.”

“For someone to go to trial in a case like this is extremely risky,” agreed Grant Scheiner, another Houston attorney with experience litigating super aggravated sex cases. “A defense lawyer has to think long and hard about whether he wants to go to trial.”

Floyd noted that there is also a political incentive for district attorneys to bring the heavier charge: It buttresses their tough-on-crime credentials using defendants — alleged child sex offenders — who typically have no public sympathy.

“It’s a win-win for them to indict with these charges,” he said, “because no one is going to complain about it.”

“Comparable to seeking a death verdict”

Cedar Park police initially charged Kelley with indecency with a child and aggravated sexual assault charges, neither of which carry a mandatory sentence, and which permit early release on parole. But when prosecutors took the case to a Williamson County grand jury, they sought a super aggravated sexual assault indictment.

“The charge they pursued is comparable to seeking a death verdict in a capital murder case because it has such a harsh penalty in the end,” said Keith Hampton, an appeals attorney who is representing Kelley.

Prosecutors who handled the case at the time, including then-District Attorney Jana Duty, have declined to comment because the case is under review.

In Travis County, prosecutors generally seek an indictment for super aggravated sexual assault if the elements of the crime meet the legal standard for the charge, said Assistant District Attorney Beverly Mathews, who heads the crimes against children division. She said she is aware of several cases in recent years that have gone to trial.

However, prosecutors might also consider the age of the child, the child’s ability to testify and the defendant’s record, and then attempt to settle the case through a plea on a less punitive charge such as aggravated sexual assault, she said. She added that aggravated sexual assault is still a first-degree felony, which carries five to 99 years in prison, and that perpetrators must serve half of their sentence before they are eligible for parole.

“Basically we are trying to balance protection of the community, as well as the child, versus a disposition that we think is just,” Mathews said.

Hays County District Attorney Wes Mau said his office also would charge a suspect with the crime if the facts of the case met the legal standard to do so. He agreed that his office might then use the charge as leverage in plea negotiations.

“You wouldn’t want to limit your options at the grand jury phase,” Mau said.

Dick, who took office in Williamson County in January, said his office hasn’t yet developed a protocol for how to review cases when the charge might apply, but is planning to soon to so. He said he is aware of instances in recent months in which authorities filed the charge.

But he said he also knows of a case this year in which prosecutors could have pursued the charge but opted not to. In that instance, Dick said, prosecutors didn’t believe the facts of the case merited the 25-year minimum prison sentence.



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