For Greg Kelley, it wasn’t real until it was real.
Not until the district attorney and judge signed off. Not until bond was set and the paperwork done. Not until he collected his things, left his cell and pushed open the jail door to outside, where friends, family and media were waiting.
Then the 22-year-old former Leander High School football player stepped out into the sunlight, kissed his girlfriend and hugged his mother while onlookers cheered and cried.
Kelley — a free man for the first time in three years — was released from the Williamson County Jail on Tuesday afternoon as he fights his 2014 conviction of super aggravated sexual assault of a child.
“It’s so surreal to me right now,” said Kelley as reporters formed a tight circle around him, thrusting cameras and microphones toward him. “I can’t process this.”
Kelley’s release caps several dramatic months, starting when the American-Statesman reported in late May that newly elected District Attorney Shawn Dick had reopened the investigation and confirmed that Kelley’s friend, Johnathan McCarty, was an alternative suspect.
On Tuesday, several weeks after court hearings to determine whether Kelley should be released, state District Judge Donna King signed off on $50,000 bond.
“This is a new beginning for me,” Kelley said. “I know it’s not over yet, but we will continue fighting and we will prevail.”
In a 10-page order Tuesday, King said she was granting bond to Kelley after finding that his due process rights were violated during a flawed Cedar Park police investigation.
King took issue with several aspects of the investigation, including that Cedar Park police Detective Chris Dailey didn’t corroborate information from the child victim, didn’t speak to McCarty, “nor did he conduct any follow-up investigation into Johnathan’s involvement, if any,” King wrote. “Detective Dailey failed to interview any adult at the McCarty household/daycare, who might have provided information concerning the reported offense.”
King also granted bond based on what she ruled was ineffective assistance from Kelley’s trial attorney, Patricia Cummings.
King cited Kelley’s decision to waive his appeal: “There can be no sound strategy to waive the appeal of a conviction unsupported by sufficient evidence. Counsel’s advice to waive his appeal was deficient.”
Cummings responded Tuesday with a statement, which read, in part: “Prior to waiving appeal, Patricia consulted with her co-counsel as well as Keith Hampton, Greg’s current lawyer, and they jointly agreed that waiving the appeal would minimize Greg’s risk. … And, it is important to note that while Greg waived his right to appeal in order to receive the minimum sentence, he did not waive his right to file a motion for new trial.”
Kelley still a suspect
The case against Kelley started in 2013 when a 4-year-old boy told his mother that he had been molested at an in-home day care facility run by Shama McCarty, Johnathan’s mother, in Cedar Park. Kelley was living at the home because his parents were ill.
In 2014, Kelley was convicted of super aggravated sexual assault of a child and sentenced to 25 years in prison.
Since then, his defense lawyers have fought to get a hearing before appeals courts, saying new information clears Kelley, that their client was failed by a poor investigation by the Cedar Park Police Department and that Kelley’s trial attorneys didn’t represent him adequately.
Kelley’s post-conviction attorney, Keith Hampton, filed a series of court documents stating Johnathan McCarty had confessed to at least two people and had pictures of nude children on his cellphone — all claims that became part of an ongoing Texas Ranger investigation. As part of his court pleadings, Hampton also showed a side-by-side photograph of the two men to suggest that Kelley’s conviction might have been partly based on mistaken identity.
Earlier this month, King conducted a three-day proceeding to hear evidence in the case during which the prosecutors took aim at the Cedar Park police investigation that put the prosecution in motion.
Dick called the police work “wholly deficient” and a Texas Ranger who testified said the work was so bad that it scared him. Cedar Park city officials have since said that they will seek an outside review of the Police Department’s policies and procedures.
In a statement Tuesday, Cedar Park Police Chief Sean Mannix said: “This matter is in the hands of the Court of Criminal Appeals and I trust that a full and fair examination of all evidence will take place. We are committed, as always, to transparency and are pleased to assist the District Attorney and the Texas Rangers with whatever they need moving forward.”
After the hearing, Kelley’s supporters were jubilant, believing the hearing paved the way for his release on bond.
But last week, a search warrant sought by the Rangers raised new questions about Kelley’s possible involvement and explained why Kelley is still considered a suspect.
It said Kelley routinely used pornography, spent hours alone with the children and was in a selfie with the victim. The affidavit also said that after Kelley’s arrest, he continued to view porn with “deviant” content.
Hampton said that his client did nothing illegal, that he didn’t spend hours with the kids and that the selfie was a picture of Kelley with his girlfriend and another child who wasn’t the victim.
Ranger Cody Mitchell said in court that two other people remain under suspicion: McCarty and a third person who hasn’t been publicly named.
On Tuesday, Dick said in a press conference that he believed releasing Kelley was the right thing to do because the system failed Kelley. Dick said he has been in contact with the family of the 4-year-old boy who was sexually abused. While he said he wanted to keep their conversation private, he acknowledged that the ordeal has been difficult for the family.
“We failed them,” Dick said. “It’s important that they know it isn’t their fault.”
Kelley’s release was made possible under a 2003 law that allows a person convicted of a crime to be let out of prison if prosecutors and a judge agree on terms for their release during the sometimes lengthy appeals process.
Legal experts who work in appellate matters say it is still unusual for judges to release an inmate on such bonds and that they do so less than a dozen times a year statewide.
With Kelley released on bond, King must submit her “findings of fact and conclusions of law” to the state’s highest criminal court, the Court of Criminal Appeals, in September. The court has the final say about whether to overturn Kelley’s conviction.
Significant hurdles remain
Kelley’s supporters believe that King’s decision to allow Kelley’s release from jail is a strong indication that she will likely recommend, at a minimum, that Kelley deserves a new trial or that she might grant their highest wish — by recommending that he be declared innocent.
Richard Wetzel, an appellate attorney who worked for the appeals court 25 years, said Kelley still has significant hurdles once his case arrives at the conservative nine-member court.
“It ain’t done until it’s done, and simply because they agree in Georgetown as to what should occur, or they agree to a bond, that does not bind these nine judges here in Austin to the ultimate outcome,” Wetzel said.
He said the court rarely overturns convictions.
“The law is very conservative — the law is tough — and there are some theories of law in terms of finality of convictions,” Wetzel said. “‘You had your trial, you lost, you had an appeal or you waived an appeal, and the show is over. So there are these very narrow grounds to try to get relief from a felony conviction.”
He added, however, that Kelley has a compelling case.
The appeals court will likely take several months, but it could issue an opinion by year’s end.
If the court were to declare Kelley innocent — meaning no reasonable juror would convict him — he is entitled to up to $80,000 a year for wrongful imprisonment compensation.
Before Kelley walked out of jail Tuesday, he gave away his commissary items and said goodbye to his fellow inmates, who cheered as Kelley passed by them, said Hampton.
Kelley told the crowd waiting outside that he hopes the family of the victim finds peace. He also asked onlookers to respect his family’s privacy and said he will hold a press conference at a later date.
“I just want to go home,” he said.
Then, followed by a swarm of reporters, Kelley stepped into an SUV with his supporters and drove away.
A conviction in question
Aug. 1, 2013: Kelley, 18, is arrested on a charge of sexual assault of a child. From December 2012 to June 2013, after both of his parents fell ill, Kelley had lived at a friend’s home in Cedar Park that was being used as an in-home day care facility. The abuse occurred during that time, according to police.
Aug. 29: Police arrest Kelley again after another 4-year-old boy says Kelley touched him inappropriately.
July 8, 2014: On the first day of Kelley’s trial, prosecutors have no physical evidence in the case, telling jurors they will have to decide whether they believe the two 4-year-olds.
July 9: Testifying on the second day of Kelley’s trial, the second boy who accused Kelley says he wasn’t abused.
July 16: Kelley is sentenced to 25 years in prison, a day after he was convicted of two counts of super aggravated sexual assault of a child.
Aug. 13: Kelley’s attorney files a motion for new trial, the first of several efforts to reverse his conviction.
Feb. 11, 2016: After two years of attempts to overturn Kelley’s conviction, a state appeals court rules against him. Defense team says it has evidence indicating Kelley couldn’t have been at the home at the time the alleged abuse occurred.
May 25, 2017: Williamson County District Attorney Shawn Dick confirms developments in the case that draw Kelley’s conviction into question, and says Texas Rangers in recent weeks have reviewed significant evidence that someone other than Kelley assaulted the 4-year-old.
Aug. 2: On the first day of a hearing in which Kelley’s lawyers are attempting to establish Kelley’s innocence, Texas Ranger Cody Mitchell testifies that, based on his years of law enforcement experience, he doesn’t think allegations against Kelley were fairly investigated and that he thinks Kelley’s right to due process was violated.
Aug. 4: At the end of a three-day hearing delving into the case, Kelley’s family and supporters were jubilant, saying they believed the testimony showed he deserves to be released from jail as the lengthy appeals process continues. Meanwhile, Dick delivered a sweeping condemnation of the case that led to Kelley’s conviction on child sexual assault charges, calling it a “catastrophic failure” of the criminal justice system — from police, prosecutors and Kelley’s defense lawyer to a juror who says he didn’t believe Kelley was guilty, but allowed other jurors to change his mind.
Aug. 22: State District Judge Donna King grants Kelley bond, and he is released from jail.
A 2003 state law allows Greg Kelley to be released on bond during the sometimes lengthy appeals process. Now state District Judge Donna King will make a recommendation to the Court of Criminal Appeals, which will decide whether to overturn Kelley’s conviction, or perhaps demand a new trial for him. The appeals court could also decide to let Kelley’s conviction stand and send him back to prison.