- Tony Plohetski American-Statesman Staff, KVUE News
On the weekend before Greg Kelley’s trial on child sexual assault charges, his attorney heard a rumor that Kelley’s best friend and roommate, who is now considered a suspect in the crime, had what appeared to be child pornography on his phone.
But the attorney, Patricia Cummings, didn’t pursue those allegations. She proceeded with the trial, her client was convicted, and now the case has been reopened as authorities chase down whether Kelley’s friend, Johnathan McCarty, might be responsible for assaulting a 4-year-old boy. Two witnesses say McCarty has confessed to them since 2014, when Kelley began serving his 25-year sentence in a maximum security prison. And in recent months, nude pictures of children have indeed been found on McCarty’s cellphone and computer, according to an affidavit filed by Kelley’s post-conviction defense attorney.
Cummings stands by her decision not to delve into the rumors about McCarty on the eve of Kelley’s trial. She wrote in a February affidavit, recently obtained by the American-Statesman and KVUE-TV, that the information came to her in the form of “multilayered hearsay” and that “there was nothing to investigate based on this kind of unsubstantiated rumor.”
“I concluded that even if an investigation of the information was possible, it would not lead to the discovery of admissible evidence and, any time spent on pursuing this type of ‘11th-hour rumor’ would actually be counterproductive to my continued efforts to prepare for trial,” she wrote.
Cedar Park police also never pursued McCarty as a suspect, though his mother’s in-home day care center is the place where the crime allegedly occurred. At that time, McCarty and Kelley also looked alike, and the 4-year-old told police his assailant wore SpongeBob SquarePants pajamas. McCarty had a pair, according to Kelley’s defense team.
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Today, McCarty remains in the Williamson County Jail on a $450,000 bond on a probation violation for drug charges. He hasn’t been charged with anything related to the Kelley case, although a Texas Rangers investigation is ongoing.
Cummings didn’t notify prosecutors about the rumor she heard in 2014. She also didn’t ask for the trial to be delayed until the speculation about McCarty could be investigated.
But legal experts interviewed by the Statesman are reluctant to criticize her for not doing so. They say the issue highlights judgment calls attorneys must make in the pressurized atmosphere of last-minute trial preparation, and they agree that she had little information to go on.
Keith Hampton, who now represents Kelley in his quest to have his conviction overturned, said he can imagine himself responding as Cummings did.
“You don’t jettison a well-prepared theory for a new one that is just based on rumor,” he said. “It’s not uncommon for brand-new stuff to just pop up out of the blue. Some of it is sexy, but some of it is so distracting and meaningless.”
August hearing critical for Kelley
Kelley, then a senior at Leander High School, lived with the McCarty family for a period in 2013 while his parents were seriously ill, and the family remained involved with the Kelleys throughout the trial, as did dozens of other supporters.
Kelley’s family contacted Cummings to represent him based on a referral from Shama McCarty, Johnathan McCarty’s mother.
Cummings — a highly regarded attorney who was part of a legal team that helped get Michael Morton declared innocent in his wife’s murder and who went on to head the conviction integrity unit for the Dallas County district attorney’s office — said she is unable to comment beyond the affidavit because of an attorney-client privilege with Kelley. She currently operates a practice in Round Rock.
The Statesman has previously reported other dimensions of the case leading up to Kelley’s conviction that have been the subject of intense scrutiny, including how Cedar Park police, who investigated the boy’s outcry, focused almost entirely on Kelley, who the child named as the perpetrator, without investigating McCarty. And recently, a juror in the case said he believes Kelley is innocent but voted to convict him after collapsing under the pressure of other jurors.
WATCH: ‘We found an innocent person guilty,’ says juror in Kelley child sex abuse trial
During the trial, Kelley’s defense focused on casting doubt on the two children who accused him of abuse. One of the boys recanted on the trial’s second day.
In the three years since, Kelley has maintained his innocence, telling the Statesman last month, “ I’ve asked God, ‘Why me?’”
Based largely on the new information about McCarty, Kelley has an August hearing in which he is seeking to have his conviction overturned.
Hampton also has obtained statements from two people who shared information with him about McCarty, including their reports about seeing pictures on his phone in the summer of 2014.
“That specific information, as well as other information contained in the affidavits, is evidence which was unknown to me before and during trial,” Cummings wrote in her affidavit. “Also, given the expressed reluctance of both witnesses to share the information contained in the affidavits, it seems unlikely that either witness would have made the information available to me at the time of the trial even if I had known their identity.”
Rumors often fly as a trial nears
Former state District Judge Jon Wisser said Cummings’ handling of what amounted to speculation at the time concerning McCarty “seems reasonable to me.”
“Right now you can say, ‘Oh my gosh, it is obvious now she should have pursued it,’” he said. “She has a rational, logical reason why she didn’t do it. You always hear rumors floating around, and you only have so many hours in the day, especially when you are preparing for trial. In the heat of battle, I can understand the decision she made.”
Geary Reamey, a St. Mary’s University law school professor who specializes in criminal justice, said it likely would have been difficult for Cummings to meet the legal standard to persuade a judge to delay the trial. Likewise, he said, law enforcement might have been reluctant to open an investigation into McCarty at the time based solely on rumors.
Judges are often skeptical, thinking that attorneys might be doing so to merely put a trial off, and become concerned about delaying justice. Law enforcement might have felt as though there was scant evidence, he said.
“I think we have to give her at least some benefit of the doubt in evaluating the evidence and the circumstances surrounding its acquisition,” Reamey said. “You can certainly understand the reluctance of a defense lawyer faced with a very serious felony trial to spend precious time pursuing something that isn’t going to be productive.”