Greg Kelley case fuels DA’s push for more scrutiny of felony charges


Highlights

Greg Kelley’s case underscores why there must be a healthy tension between police and the DA’s office.

Most Central Texas district attorneys have some sort of screening for cases, but it is not required.

With his about-to-be unveiled presentation beaming onto a big screen behind him, Williamson County District Attorney Shawn Dick stood before two dozen police investigators for a candid conversation.

The focus of the discussion was what Dick views as his office’s responsibility to thoroughly vet a police investigation before proceeding to the court system – something he believes has not happened as often as it should in a county with a tough-on-crime reputation.

“This is the most important relationship in law enforcement,” Dick, who took office in January, told the group. “It is so crucial in seeking justice. We aren’t going to always agree, and we aren’t here to tell you how to be a police officer.”

He had barely spoken a few sentences before he brought up the case that has dominated his first 10 months in office — one that has pitted Dick, a former defense attorney, against some veteran detectives.

“I just want to talk about the elephant in the room,” Dick said. “Obviously the Greg Kelley case is high-profile, but it is not the only case. The lessons learned over the past few months, we can do better.”

READ: Greg Kelley case puts spotlight on questionable work by Cedar Park police

Police and prosecutors work on the same side of the criminal justice system, but legal experts say Kelley’s case underscores why there must also be a healthy tension between them. They need to challenge one another’s assertions, making sure all leads have been followed and debating whether they have enough evidence to prove the charge.

In short, experts say, prosecutors must be positioned as gatekeepers, a backstop to keep a case full of holes from going to the courtroom.

“If they are each entirely on the same page, odds are neither is really thinking about their special role in the process,” said Daniel Richman, a law professor at Columbia University in New York who has studied the layers of the justice system. “That is where you lose a chunk of deliberative thought in a process that needs deliberative thought.”

Dick says Kelley’s case highlights what happens when the checks and balances aren’t working — a lesson prosecutors in other Central Texas counties said they are also heeding as the case continues to be widely discussed and debated.

“We want to make sure we dot every I and cross every T,” he said. “It’s important to me, and it’s important to our community, that we get this right.”

‘Catastrophic failure’

Kelley was convicted in 2014 of sexually assaulting a 4-year-old boy and sentenced to 25 years in prison. But Dick reopened the case in May, after Kelley’s appeals attorney convinced him that Cedar Park police and prosecutors had overlooked an alternative suspect.

At Dick’s request, a Texas Ranger re-investigated the case and found the Cedar Park police investigation was so full of holes that the Ranger, Cody Mitchell, testified that it scared him to consider what would happen if he were ever wrongly accused of a crime in Williamson County. Mitchell also said there is a third suspect in the crime (whom Mitchell declined to identify), saying Kelley and his former friend Johnathan McCarty also remain suspects.

In the case’s most recent development, Dick said publicly that it is unlikely McCarty will ever be charged with the crime.

The outcome of Kelley’s appeal has not been determined. A state district judge is expected to issue recommendations to the state’s highest criminal court in the next several weeks about whether it should be overturned or whether Kelley should be declared innocent. Because of what she has already declared evidence in his favor, the judge has released Kelley from prison on bond.

WATCH: Greg Kelley is released on bond in child sex assault case

Dick said prosecutors on the case in 2014 failed to challenge police on basic investigative steps they did not take, such as not identifying other adults who could have assaulted the boy and not searching a home where the crime is alleged to have happened. Instead, he says, they went forward with a case filled with alarming gaps.

That is one of many reasons he has said the case resulted in a “catastrophic failure” of the criminal justice system, and why he said he has devoted so much attention to understanding what may have gone wrong, including an effort to reset how law enforcement in Williamson County works with prosecutors.

Cedar Park police officials have declined to comment pending the outcome of the appeal, but investigators quietly insist that they still think Kelley is guilty and that Dick is bowing to political pressure. Prosecutors of the case Sunday Austin, who now works in private practice, and Geoffrey Puryear, now an assistant Travis County district attorney, also have declined to comment.

No collaboration required

It is common for prosecutors to get involved in an investigation early, offering advice on what they may need to prove a case and to guide detectives on legal matters such as when and how to obtain search warrants.

They also advise officers on when they have met the legal threshold for probable cause and a case is ready to be filed.

But across Texas, the level of partnership between police and prosecutors varies from county to county, agency to agency. District attorneys’ offices, which prosecute felony crimes, are free to screen cases brought by law enforcement before filing a charge, but nobody forces them to do it, and there are no uniform policies for how to go about it.

Some follow what had been the practice in Williamson County until Dick took office, accepting and moving forward with every case brought to them by police, Dick said. Others, including Harris and El Paso counties, exercise a tight screening process, requiring approval by a prosecutor before a charge is filed in court. The majority of district attorneys’ offices do something in between.

READ: Greg Kelley faces uphill battle for freedom

Yet the varying policies can lead to inequities in how individual cases — and a county’s entire justice system — play out.

In one county, for instance, with early involvement from prosecutors, a case may never be filed — meaning a suspect is never arrested or booked into jail. On the other hand, in a county with no screening or input from prosecutors, a case can get well into the court system or even go to trial on evidence that others may have deemed too flimsy to proceed.

Prosecutors hold themselves to different ethical standards, said University of Texas law school professor Jennifer Laurin. Some prosecutors, for example, might move ahead if they have a personal belief that a suspect committed a crime, she said. Others set the bar at whether a grand jury or a trial jury could reasonably believe in the suspect’s guilt.

“It’s all very individualized,” Laurin said.

Experts say that relationships between prosecutors and police are a balancing act, but they also warn that a too-cozy relationship can have other ramifications. For instance, civil rights groups across the country have complained after controversial shootings by law enforcement officers who were not held accountable because of long relationships between police and prosecutors.

Laurin says that risk is usually tempered by the fact that prosecutors don’t want to see their verdicts overturned and try not to make other mistakes that put their cases in jeopardy.

The idea that prosecutors should be heavily involved from the outset of a criminal case rises from the federal model, Laurin said. Because they usually have more resources than local district attorneys’ offices, federal prosecutors work closely with agencies such as the FBI and often set the agendas in investigations.

“There are no rules written anywhere saying that’s the way it happens, but that’s sort of the culture,” she said.

How it works in Travis and Hays

Among Central Texas district attorneys, most now have some sort of screening for cases, and at least one county, Travis, is working to bolster that process.

Hays County District Attorney Wes Mau said that each day, office staff creates files for newly filed cases and that prosecutors review them within a couple of days. Sometimes, they may ask officers to collect more information or conduct follow-up interviews if the case hinges on a judgment call. About 20 percent of the time, he estimates, they may also decide that a case should not go forward.

“We should be calling the officer and telling them why we are declining the case so they understand,” he said. “One of the things I have tried to emphasize with my staff is to have an open line of communication with law enforcement.”

Travis County District Attorney Margaret Moore, who took office in January, said her office has for years had a well-polished process in place for prosecutors and other experts to handle child sexual abuse cases from the moment they are reported to ensure they are handled properly.

READ: Travis County DA picks up the pace on domestic violence cases

But Moore said she also is working to establish a 24-hour intake process in which prosecutors would be stationed at the Travis County Jail to review cases when officers bring a suspect to jail to ensure they are sufficient for prosecution.

The agency also has prosecutors on call to respond to major crimes to help advise police and to be involved in such cases from the start.

Moore said her efforts to make shifts in the screening of cases have been part of her plan since her campaign and are not in response to Kelley’s case.

“The very strong relationship on these particular cases, that makes for better cases and more security that we are making good decisions,” Moore said.

New division screens cases

In his four-hour presentation to the police investigators, Dick and a team of prosecutors presented a guide about how to properly gather the kind of information they need to go forward with a case and impressed upon them why consulting his office is crucial as prosecutors weigh whether to charge a defendant and for what crime.

In addition to making presentations to police investigators, Dick in recent months has set up a new division of his office made up of prosecutors, investigators and clerks to help screen cases.

He said he was told that last year, the office filed about 3,800 cases. This year, his office is on pace to file about 2,500, and he thinks tighter screening is a major factor.

INTERACTIVE TIMELINE: Greg Kelley sex assault case

Williamson County Sheriff Robert Chody said his investigators have noticed.

“Sometimes there is disagreement,” he said. “There have been come challenges, but we will get through them. When you are talking about people’s liberties, we understand that. But it can bring some frustration on investigators because they want to get the bad guy and move on.”

Georgetown Assistant Police Chief Cory Tchida said, “We want to make the strongest case possible. That is always our desire. Law enforcement doesn’t ever want to see someone go to jail who isn’t guilty.”

Dick said in the last administration, prosecutors would later drop about 40 percent of cases — after a defendant has gone to court a number of times, paid a defense attorney and may be set for trial.

“Not only are you preventing cases that should have never been in the system in the first place, you are also making cases that should be in the system stronger,” Dick said. “It is better for the whole system.”



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